JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES JOHN D. LUTHY and AMY J. OLIVER concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Following a multi-day bench trial, the juvenile court entered an order terminating A.M.’s (Mother) parental rights to her child, M.M. (Child). Mother contends the court erred in denying her reunification services and in concluding termination of her parental rights was strictly necessary. Because Mother has not persuaded us that the court committed reversible error, we affirm its order terminating Mother’s parental rights.
¶2 Mother is the biological parent of three children: Child, born in 2015; A.M. (Sister), born in 2018; and B.B. (Brother), born in 2019. All three children have different biological fathers. This appeal concerns only Child. Nevertheless, a complete understanding of the events giving rise to this case necessitates a recounting of the background as it relates to all three children.
¶3 In December 2016, prior to the birth of Sister and Brother, Child’s maternal grandmother (Grandmother) and maternal step-grandfather (Grandfather) noticed “large bruises on [Child’s] hips and thighs when they put him into the bath.” The following day, a caseworker from the Division of Child and Family Services (DCFS) met with Grandmother and Grandfather and examined Child. The caseworker observed the same bruising on Child that had been seen the day before, as well as a “small bruise in [Child’s] hairline above his forehead.” Child was transported to the hospital where a doctor observed the bruising and opined that “the bruising is concerning for abuse because of its location, linear component, the large size, and the lack of history explaining them.”
¶4 A few months later, in February 2017, Child was brought to the hospital for a breathing treatment for his asthma. While at the hospital, a doctor again observed “linear bruising on [Child’s] buttocks,” which she described as a “classic bruise found with spanking or inflicted trauma.” She explained the bruising was consistent with “excessive,” “repeated high-force spanking.”
¶5 During the time of these injuries, Child had been residing with Mother, Mother’s husband (Stepfather),[2] Grandmother, and Grandfather, and he had also attended daycare. Ultimately, no one was able to provide an explanation for the bruising. As a result, the juvenile court concluded that Child “has been abused by an unknown perpetrator” and adjudicated him dependent as to Mother. The court allowed Child to remain with Mother, contingent on her compliance with a safety plan and completion of court-ordered services. In December 2017, after Mother had received a year of services, the court terminated its jurisdiction and returned permanent custody and guardianship of Child to Mother.
¶6 The following month, Sister was born. Brother was born a year and a half later.
¶7 In August 2019, Brother suffered a series of abusive episodes. First, Mother said she “fell going down some stairs” while holding Brother. Thereafter, Brother’s father picked Brother up from a babysitter and became concerned that Brother was vomiting and appeared dehydrated. Brother was taken to the doctor for examination but was sent home with his father because the cause of the vomiting was “undetermined.” A few weeks later, Brother’s father again observed that Brother had been vomiting and appeared dehydrated. Brother was taken to the hospital for examination.
¶8 Upon examination, Brother’s head appeared “swollen.” A subsequent CT scan revealed a “large” brain bleed and a skeletal survey revealed “multiple healing rib fractures.” A doctor evaluated Brother the following day and expressed that Brother’s initial vomiting was “consistent with the brain injury” and a “sign” that the brain injury had occurred. She noted that although Brother’s head circumference had not been measured during his initial visit to the doctor, by the time of his second visit—which occurred approximately two weeks later—Brother “had a massive head.” She also opined that Brother’s injuries were caused by one of his caregivers and were “consistent with inflicted trauma and child abuse.” When questioned, both parents denied any involvement or knowledge of injuries to Brother. However, based on her conversation with both parents, the doctor had “much more concern” that Mother had caused Brother’s injuries.
¶9 Based on Brother’s injuries, the State filed a verified petition for custody and guardianship on behalf of all three children in August 2019. In the petition, the State asked the juvenile court to find that “[Brother] is severely abused by [Mother]” and that Child and Sister were “siblings at risk” and “neglected” as to Mother.
¶10 Over the next several months, the juvenile court transferred temporary custody of Sister and Brother to their respective fathers. Although the State requested that Child be removed from Mother’s custody, the court allowed Child to remain home with Mother on the condition that she comply with a safety plan. The safety plan required “line of sight supervision” by Grandmother and Grandfather for “any contact” between Mother and Child. But Mother did not abide by the safety plan, and in January 2020, after a DCFS caseworker observed a series of three events of non-compliance, the court transferred Child to DCFS’s custody, finding that Mother had “substantially endangered” Child’s welfare. Child was then placed in a foster care home.
¶11 In July 2020, Mother appeared before the juvenile court for adjudication of the State’s verified petition for custody.[3] After negotiations with Mother, the State agreed to amend the petition by removing the allegation that Mother had severely abused Brother, replacing it with an allegation that Brother suffered “severe physical abuse while in the care of [Mother].” Following this amendment, Mother proceeded with adjudication and entered a plea pursuant to rule 34(e) of the Utah Rules of Juvenile Procedure by which she neither admitted nor denied the allegations but they were deemed admitted as a matter of law.
¶12 At the close of the hearing, the court found by clear and convincing evidence that Brother had suffered “severe physical abuse while in the care of [Mother].” Accordingly, the court found that “[Sister] and [Child] are siblings at risk” and were “neglected” as to Mother. In addition to adjudicating the children’s statuses, the court also substantiated the DCFS supported finding of severe physical abuse of Brother while in Mother’s care. The court ordered that Brother and Sister continue in the temporary custody of their respective fathers and that Child continue in the custody of DCFS.
¶13 Shortly thereafter, the juvenile court held a disposition hearing during which it resolved the custody petition as to Brother and Sister by granting custody and guardianship to their respective fathers and terminating jurisdiction. The court requested briefing on the issue of whether Mother should be provided reunification services for Child. Citing the allegations that Mother physically abused her children, even after receiving court-ordered services, as well as Child’s success in his current foster placement, the State and the guardian ad litem (GAL) argued that reunification services were not in Child’s best interest and accordingly requested that services not be provided. In September 2020, the court entered an order denying reunification services to Mother.[4] In April 2021, the court set Child’s primary permanency goal as adoption with his current foster parents.
¶14 The next month, the State filed a petition to terminate Mother’s parental rights to Child. The matter proceeded to an eight-day bench trial that took place in March and April 2022.
¶15 At trial, several therapists who had provided mental health services to Mother testified. All agreed that Mother suffered from trauma and that treatment was needed to address it. These therapists further testified that while Mother had attended some therapy sessions, Mother had either canceled, rescheduled, or failed to attend many of the sessions, and that although Mother had made some progress in therapy, she still had a long way to go to process her trauma.
¶16 Child’s therapist and foster parents testified regarding Child’s communications with them, as well as Child’s improvements since his removal from Mother’s custody. Child’s therapist explained that Child suffered from “separation anxiety disorder and unspecified trauma and stressor-related disorder” but that these conditions had greatly improved while Child was living with his foster parents. Likewise, Child’s foster mother testified that Child had grown emotionally while in her care. She detailed Child’s emotional bonds with the members of his foster family and recounted how it was “an easy decision” to pursue adopting Child. Moreover, Child’s therapist and foster mother both testified that Child had reported witnessing Mother “hit his sibling on the head” and that Child had also reported that Mother had hit him.
¶17 Following trial, the juvenile court issued an order terminating Mother’s parental rights to Child. The court found the testimony and evidence presented to be true, and therefore concluded that the State had proved by clear and convincing evidence three statutory grounds for termination. The court also found that it was in Child’s best interest and strictly necessary to terminate Mother’s parental rights. In reaching this conclusion, the court noted it had “considered the specific circumstances” of the case, including Child’s “wishes to remain in his current foster home” and the feasibility of an alternative to termination, such as a permanent guardianship.
ISSUES AND STANDARDS OF REVIEW
¶18 Mother now appeals the juvenile court’s order terminating her parental rights to Child, raising two issues for our review. First, Mother argues the court erred when it refused to order reunification services to her. We review the juvenile court’s interpretation of the law for correctness; however, “[t]he ultimate decision whether to provide or deny reunification services is a determination that we review for abuse of discretion.” In re Z.G., 2016 UT App 98, ¶ 4, 376 P.3d 1077.
¶19 Second, Mother argues the juvenile court erred when it concluded that termination of her parental rights was strictly necessary. “We review deferentially a lower court’s best-interest determination and will overturn it only if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” In re J.J.W., 2022 UT App 116, ¶ 18, 520 P.3d 38 (quotation simplified).
ANALYSIS
I. Reunification Services
¶20 Mother first argues the juvenile court erred when it denied reunification services to her. Specifically, she contends the court misinterpreted the law and abused its discretion when it (1) failed to provide the “necessary findings for the presumption against reunification services to apply” and (2) improperly weighed the statutory factors a court must use when determining whether to order reunification services.
¶21 After a juvenile court adjudicates a child as abused, neglected, or dependent, the court must conduct a dispositional hearing. See Utah Code § 78A-6-311(1) (2020). At that hearing, if the court orders that the child continue in the custody of DCFS, the court shall (1) “establish a primary permanency plan” and (2) “determine whether, in view of the primary permanency plan, reunification services are appropriate.” Id. § 78A-6-312(2).
¶22 The decision to order reunification services is therefore discretionary with the juvenile court, and “parents have no constitutional right to receive these services.” In re A.K., 2015 UT App 39, ¶ 15, 344 P.3d 1153 (quotation simplified); see also In re N.R., 967 P.2d 951, 955–56 (Utah Ct. App. 1998); Utah Code § 78A6-312(20)(a) (2020). Accordingly, we will overturn the court’s decision only if it “either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” In re E.R., 2021 UT 36, ¶ 31, 496 P.3d 58 (quotation simplified).
¶23 In determining whether to order reunification services, the child’s “health, safety, and welfare shall be the court’s paramount concern.” Utah Code § 78A-6-312(5) (2020). And in making this determination, the juvenile court must consider a non-exclusive list of statutory factors, including the following:
· “failure of the parent to respond to previous services or comply with a previous child and family plan;”
· “the fact that the minor was abused while the parent was under the influence of drugs or alcohol;”
· “any history of violent behavior directed at the child or an immediate family member;”
· “whether a parent continues to live with an individual who abused the minor;”
· “any patterns of the parent’s behavior that have exposed the minor to repeated abuse;”
· “testimony by a competent professional that the parent’s behavior is unlikely to be successful; and”
· “whether the parent has expressed an interest in reunification with the minor.”
Id. § 78A-6-312(23). However, in cases involving “obvious sexual abuse, sexual exploitation, abandonment, severe abuse, or severeneglect,” the court has no duty to provide services. Id. § 78A-6-312(4). And several circumstances—if found by clear and convincing evidence—create “a presumption that reunification services should not be provided to a parent.” Id. § 78A-6-312(21).
¶24 Before the juvenile court, the State and the GAL argued that reunification services should not be offered to Mother. While only the State argued that the presumption against providing services should apply, both parties argued that the statutory factors weighed in favor of denying reunification services. Ultimately, the court denied services, finding they were not “appropriate” “given the fact that [Mother] had services before.”
¶25 Mother takes issue with the juvenile court’s determination on two grounds. As an initial matter, she asserts the court made “no findings in its reunification order, much less findings by clear and convincing evidence,” that would allow the court to apply the presumption against providing reunification services. But even if Mother’s assertion is correct and a presumption against reunification services does not apply in this case, Mother ignores that the court may still properly deny services regardless of whether a presumption exists.[5] And on the facts of this case, the court did not abuse its discretion in concluding that denying reunification services to Mother was appropriate.
¶26 Next, Mother asserts the juvenile court improperly weighed the statutory factors a court must consider when determining whether to provide reunification services. According to Mother, “four[6] of the seven factors weigh in favor of granting Mother reunification services” and “the remaining three factors do not tip the balance towards not offering reunification services.” We disagree.
¶27 First, Mother contends the juvenile court improperly determined she had failed to respond to reunification services in the past. See Utah Code § 78A-6-312(23)(a) (2020) (requiring courts to consider the “failure of the parent to respond to previous services or comply with a previous child and family plan” when determining whether to order reunification services). She claims that the dismissal of the first protective services case in December 2017 and the full restoration of custody of Child shows she responded to services and complied with her previous family plan. But in concluding that this factor weighed against Mother, the court considered Mother’s compliance in the first protective services case as well as her actions after that case was closed. The court explained,
I see that you’ve had services before on [Child]. We had a [protective supervision services] case. . . . You engage in services. We think things are good. We close the case.
Then not much longer . . . we have a severe abuse to [Child]’s younger sibling . . . . We’ve already done reunification services or services by DCFS for you on [Child] and here we are again with a severely abused child.
¶28 This explanation is sufficient to show that the court adequately considered whether Mother had failed to respond to previous reunification services. The court weighed Mother’s prior compliance against her actions following the completion of the original services. Because the court’s decision is not “against the clear weight of the evidence,” a “measure of deference is owing” to the court’s decision. In re E.R., 2021 UT 36, ¶ 32 (quotation simplified). Accordingly, we will not perform an “independent ‘reweighing’ of the evidence” but will instead “respect[]” the court’s decision. Id.
¶29 Second, Mother contends the juvenile court improperly weighed against her the factors concerning “any history of violent behavior directed at the child or an immediate family member” and “any patterns of the parent’s behavior that have exposed the minor to repeated abuse.” See Utah Code § 78A-6-312(23)(c), (e) (2020). Specifically, Mother asserts these factors do not weigh against her because she “was not adjudicated as abusing [Child] in 2017,” there are “no other allegations” that Child or Sister have been otherwise injured, and it has “never been established that Mother harmed [Brother].”
¶30 But Mother’s arguments on this point ignore substantial record evidence indicating that Mother did have a history of violent behavior directed at Child or Child’s immediate family members and that Mother’s behavior exposed Child to repeated abuse. While Mother is correct that she was not adjudicated as abusing Child in 2017, Child’s statements to his foster mother and therapist provide substantial evidence of Mother’s history of violent behavior toward Child and other immediate family members. Notably, the juvenile court found that during a therapy session, Child credibly reported to his therapist that he had witnessed Mother “hit his sibling on the head.” And at trial, Child’s foster mother testified that on multiple occasions, Child told her that Mother had hit him. Further, as the juvenile court found, Child, Brother, and Sister were all exposed to repeated abuse while in Mother’s care. Indeed, Child and Sister were found to be “siblings at risk” and “neglected” based on Mother’s rule 34(e) plea to the allegation that Brother suffered “severe physical abuse while in the care of [Mother].” This exposure occurred subsequent to the court’s 2017 determination that Child had been “abused by an unknown perpetrator” during a time when Mother “was the primary caregiver.”
¶31 The juvenile court did not abuse its discretion by deciding not to order reunification services for Mother. In reaching this decision, the court evaluated the evidence before it, and Mother has not demonstrated that the court’s decision was against the clear weight of the evidence.[7]
II. Strictly Necessary
¶32 Next, Mother argues the juvenile court erred in determining it was strictly necessary to terminate her parental rights to Child. In particular, Mother contends the court’s strictly necessary analysis was “improperly brief and conclusory.”
¶33 “Because the relationship between parent and child is constitutionally protected, a court may only terminate parental rights upon a finding that termination is strictly necessary to the best interest[] of the child.”[8] In re S.T., 2022 UT App 130, ¶ 25, 521 P.3d 887 (quotation simplified). “This analysis should be undertaken from the child’s point of view, not the parent’s.” In re B.T.B., 2020 UT 60, ¶ 63, 472 P.3d 827 (quotation simplified).
¶34 When evaluating whether termination is strictly necessary,
the juvenile court must address whether “the child can be equally protected and benefited by an option other than termination.” Id. ¶ 66. This inquiry cannot be satisfied merely by relying on the “categorical concern” that adoption offers the highest degree of permanency. In re J.A.L., 2022 UT 12, ¶ 25, 506 P.3d 606. Instead, the court must analyze the “particularized circumstances of the case” and “explore whether other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights.” In re S.T., 2022 UT App 130, ¶ 26 (quotation simplified). If another option exists where “the child can be equally protected and benefited,” then “termination is not strictly necessary” and “the court cannot order the parent’s rights terminated.” In re B.T.B., 2020 UT 60, ¶ 66.
¶35 In determining that it was strictly necessary to terminate Mother’s parental rights, the juvenile court explicitly stated that it “considered whether a placement with Permanent Guardianship would equally protect and benefit [Child].” Ultimately, the court decided against such an arrangement, finding it was not in Child’s best interest “as it does not provide the permanency that he seeks and wishes for.” Citing In re J.A.L., 2022 UT 12, 506 P.3d 606, Mother contends this conclusion was error because it is based on the categorical concern that a permanent guardianship is not as permanent as an adoption.[9] Mother’s argument is unavailing, however, because it selectively focuses on the court’s conclusion without considering it in the fuller context.
¶36 Here, the juvenile court was not presented with any feasible alternative option for a permanent guardianship placement, nor has Mother proposed one on appeal. At the time of trial, the only individuals that had previously been involved in the case were not feasible placement options. Indeed, Grandfather had failed to comply with the safety plan by allowing Mother to interact with Child outside his “line of sight,” which ultimately led to Child’s removal; Grandmother and Mother were estranged; and the State had initiated termination proceedings for Father.[10] Consequently, there was “no other option, short of termination and adoption, that would have otherwise been apparent to the juvenile court.” See In re D.G., 2022 UT App 128, ¶ 8 n.2, 522 P.3d 39, cert. denied, 527 P.3d 1106 (Utah 2023). And “where only one feasible custody option exists, the categorical concern that adoption is more stable than a permanent guardianship is not implicated.” In re S.T., 2022 UT App 130, ¶ 32 n.6 (quotation simplified).
¶37 In sum, given Child’s “strong emotional ties with [his] foster parents,” see id., and the lack of “any remotely feasible alternatives to termination and adoption,” see In re D.G., 2022 UT App 128, ¶ 8 n.2, it was entirely proper for the juvenile court to find that it was strictly necessary to terminate Mother’s parental rights.[11]
CONCLUSION
¶38 The juvenile court did not err in terminating Mother’s parental rights to Child. The court’s decision to deny Mother reunification services was not an abuse of discretion because the court’s decision is well supported by evidence in the record. And the court did not err when it found that termination of Mother’s parental rights was strictly necessary because there were no feasible alternative placement options other than termination and adoption. Affirmed.
[1] “We recite the facts in the light most favorable to the juvenile court findings.” In re S.T., 2022 UT App 130, n.2, 521 P.3d 887 (quotation simplified).
[2] Stepfather and Mother married one day after DCFS made the initial home visit to observe Child. Prior to the marriage, Stepfather spent “multiple nights in a row” in the home with Mother and Child.
[3] Although the juvenile court adjudicated Child’s status as to Mother in July 2020, the written order was not entered until August 2021—approximately one year after the adjudication hearing. Mother appealed the written adjudication order, arguing that she was deprived of due process by the court’s delay in entering the order, but this court affirmed.
[4] At the time reunification services for Mother were denied, an Interstate Compact on the Placement of Children (ICPC) request form had been sent to Child’s biological father (Father), who resides in South Carolina. Following denial of services for Mother, the juvenile court changed Child’s primary permanency goal from reunification with Mother to reunification with Father with a concurrent goal of adoption. During a subsequent permanency hearing, the court terminated reunification services to Father due to his failure to comply with any of the three ICPC requests initiated by DCFS and changed Child’s primary permanency goal to adoption with his current foster parents. Father’s parental rights to Child were then terminated in June 2022.
[5] Moreover, Mother’s position on this point seems to ignore the juvenile court’s own explanation of its reasoning to deny reunification services. At the disposition hearing, the court explicitly agreed with Mother’s counsel that Child did not qualify as a “severely abused child,” which would create a presumption against providing services. As a result, the court stated, “I don’t really attach the presumption that [Mother] should not receive reunification services. I’m kind of looking towards the presumption that she should . . . .”
[6] These factors are (1) “the fact that the minor was abused while the parent was under the influence of drugs or alcohol,” (2) “whether a parent continues to live with an individual who abused the minor,” (3) “testimony by a competent professional that the parent’s behavior is unlikely to be successful,” and (4) “whether the parent has expressed an interest in reunification with the minor.” See Utah Code § 78A-6-312(23)(b), (d), (f), (g) (2020).
[7] Mother challenges the adequacy of the juvenile court’s findings in support of its decision not to order reunification services by asserting that “the juvenile court made no findings in its reunification order.” But Mother’s assertion is overbroad; the juvenile court did make explicit factual findings regarding a number of the facts we have noted as supportive of its determination not to order services. And, while we acknowledge that the court did not explicitly disclose all the analytic steps it took in deciding not to provide services, this is a case where the court’s “unstated findings can be implied” because “it is reasonable to assume that the [juvenile] court actually considered the controverted evidence and necessarily made . . . finding[s] to resolve the controversy, but simply failed to record the factual determination[s] made.” Fish v. Fish, 2016 UT App 125, ¶ 22, 379 P.3d 882 (quotation simplified). It is not a case “where there is a matrix of possible factual findings and we cannot ascertain the [juvenile] court’s actual findings.” Hall v. Hall, 858 P.2d 1018, 1025–26 (Utah Ct. App. 1993) (quotation simplified). The evidence and arguments presented below, coupled with the juvenile court’s decision not to order services, necessarily imply that the juvenile court found the factors in Utah Code subsections 78A-6312(23)(c) and (e) weigh against the provision of services based on the findings and evidence we have outlined above. Although on this record the unstated steps of the juvenile court’s analysis can be implied, we caution courts to ensure that the analytic steps taken in support of such fact-sensitive decisions are fully articulated in an oral or written ruling, order, or judgment. Detailed findings aid appellate review and reduce the likelihood of reversal.
[8] “To terminate a parent’s rights, Utah law requires that both elements of a two-part test are satisfied. First, the court must find that one or more of the statutory grounds for termination are present. Second, the court must find that termination of the parent’s rights is in the best interest[] of the child.” In re S.T., 2022 UT App 130, ¶ 25 n.5, 521 P.3d 887 (quotation simplified). Here, Mother acknowledges the juvenile court properly found at least one ground to terminate her parental rights. Accordingly, our focus is limited to only the court’s best interest determination.
[9] In a related vein, Mother also asserts the juvenile court’s decision was conclusory because the court focused only on negative testimony and overlooked the positive testimony of several of Mother’s therapists. But this position ignores that “Lilt is the role of the juvenile court, not this court, to assess the weight and credibility of expert witnesses and to choose among their testimonies.” In re G.V., 916 P.2d 918, 920 (Utah Ct. App. 1996) (per curiam). As such, we decline to reweigh the evidence.
[10] The lack of alternative options was reiterated through the trial testimony of Child’s great-uncle (Uncle). Uncle testified that Mother and Grandfather were estranged, largely due to Grandfather’s role in having Child removed from Mother’s custody, and that Mother and Grandmother were estranged because Grandmother is “a very toxic individual” and “abusive toward” Mother. Uncle also explained that although he wanted to be “involved” with Child, he was not in a position for Child to be placed with him. Lastly, Uncle noted that his brother had applied for Child to be placed with him, but his application was not approved.
[11] We again caution juvenile courts to “adequately disclose[]”— either in an oral or written ruling—all the “analytic steps” they take when they conduct a best interest analysis. Keiter v. Keiter, 2010 UT App 169, ¶ 21, 235 P.3d 782 (describing a challenge to the adequacy of findings as raising the issue of whether “the findings as a whole adequately disclosed the analytic steps taken by the trial court”). Here, however, even assuming that the court’s articulation of its strictly necessary analysis could have or even should have been more robust, without any feasible alternatives to termination and adoption, Mother cannot show that the court’s finding on this point was against the clear weight of the evidence. See generally In re J.J.W., 2022 UT App 116, ¶ 19, 520 P.3d 38 (“[I]n some instances (e.g., where the existence of a particular option would not be readily apparent to the court), a parent may need to expressly ask a [juvenile] court to consider a specific non-termination option in order to properly preserve the right to argue, on appeal, that the court did not adequately consider that option.”). But in cases where a feasible alternative placement option does exist, a court assessing strict necessity must explain, “on the record,” why adoption and termination of the parent’s rights would better further the child’s best interest than the alternative option. See In re B.T.B., 2020 UT 60, ¶ 74, 472 P.3d 827.
There are so many things wrong with this question. But thank you for asking it because it can be the start of a beneficial conversation and lead to a better understanding of divorce and family law, child custody, and support.
First, the question implies that only women receive child support from men, and thus only men pay child support to women. Wrong. Child support is paid to a parent (man or woman) who can demonstrate that he/she needs payment from the other parent to help the child maintain the lifestyle that his/her parents’ respective lifestyles can and ought to support. Many times, the child support payee (recipient) is the mother. This could be because the mother has the child in her care and custody for a greater portion of the year than does the father. It could also be because the mother earns less money than the father.
But if the father were awarded physical custody of a child for more time during the year than the mother and/or made less money than the mother, then the father could be awarded child support. Many fathers (not as many fathers as mothers, but some fathers) find themselves in this exact situation, which is why many fathers receive child support from mothers.
Just being a mother will not guarantee that a woman will receive child support. Whether a parent committed abuse rarely has anything to do with whether that parent will pay child support (see above), although it may have an indirect effect on child support if, due to a parent’s abuse, the other parent is awarded more custodial time with the child.
Third District Juvenile Court, Salt Lake Department
The Honorable Monica Diaz
No. 1207437
Kelton Reed and Lisa Lokken
Attorneys for Appellant
Sean D. Reyes, John M. Peterson, and Carol L.C.
Verdoia, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
Before JUDGES MICHELE M. CHRISTIANSEN FORSTER, DAVID N.
MORTENSEN, and AMY J. OLIVER.
PER CURIAM:
¶1 R.S. (Mother) appeals the juvenile court’s order terminating her parental rights with respect to K.R. (Brother) and R.B. (Sister) (collectively, the children). Mother alleges the juvenile court exceeded its discretion in determining that it was strictly necessary to terminate her rights rather than awarding permanent custody and guardianship to the children’s maternal grandmother (Grandmother). We affirm.
¶2 In January 2022, the Department of Child and Family Services (DCFS) received a report that Mother was using drugs and neglecting Sister, who was an infant at the time. Four-year-old Brother was already living with Grandmother, and DCFS soon placed Sister with Grandmother as well.
¶3 Following a disposition hearing, the Court set a primary goal of reunification and set up a child and family plan. Mother received an initial substance abuse and mental health assessment but made no progress toward receiving treatment. She took only five of ninety-six required drug tests and tested positive on all five.
¶4 Nevertheless, Mother continued to demonstrate an attachment to the children. She participated in visits with the children on a bi-weekly basis, although she did miss some visits and had not seen the children for several weeks prior to the termination trial. The visits were supervised by a DCFS caseworker (Caseworker), and the children had to travel six-and-a-half hours round trip to attend. On some occasions, Mother cancelled visits without notifying Grandmother, leading the children to make the trip unnecessarily. Brother became upset when Mother missed visits with him.
¶5 Early on, Caseworker observed Mother having “inappropriate conversations” with Brother regarding Grandmother, such as telling him that Grandmother was not properly caring for him. Caseworker would redirect Mother to more appropriate topics, and “with reminders, this behavior . . . stopped.” Mother engaged with the children during visits and planned activities for them to do together.
¶6 Grandmother and Mother used to have a good relationship, but it had deteriorated due to Mother’s drug use and the DCFS case. According to Grandmother, Brother’s behavior would “deregulate[] for a couple days” after visits with Mother and he would become belligerent toward Grandmother. Mother would send Grandmother insulting text messages, and she had trouble respecting boundaries Grandmother set. Both women indicated they would not be comfortable “co-parenting” with one another.
¶7 Following the termination trial, the juvenile court found several grounds for termination, which Mother does not challenge on appeal. The court then turned to the best interest analysis, including the question of whether termination of parental rights was strictly necessary.
¶8 The court considered whether awarding permanent guardianship to Grandmother was an alternative to termination that could “equally protect and benefit the children.” However, the court ultimately determined that termination was strictly necessary for the following reasons:
· Mother and Grandmother “do not have a relationship” and are “unable to communicate regarding the children’s needs and wellbeing.” And while Grandmother attempts to set reasonable boundaries, Mother does not respect them. Mother herself acknowledged that “having her and [Grandmother] co-parent would not be healthy for the children.”
· Mother had a history of making inappropriate comments regarding Grandmother to Brother during parent time. These comments led Brother to become belligerent toward Grandmother following visits. Although Mother had stopped making such comments at the direction of Caseworker, the court was concerned that she would “revert to making these comments, without the oversight of the Division.” The court found that pitting the children against their caregiver in this way was “unhealthy” for their “emotional development and wellbeing.”
· Visits with Mother “are emotionally hard on the children.” Brother experiences behavioral problems after visits with Mother.
· The children have to travel six-and-a-half hours round trip to visit Mother. Because Mother does not communicate with Grandmother, she does not let her know when she is unable to attend visits. This has led the children to “endure the travel time needlessly.” Additionally, it is emotionally hard on Brother when Mother misses visits. The long travel time, emotional harm due to missed visits, and Mother’s inability to communicate with Grandmother combine to undermine the children’s stability. “They need to know that their relationships are stable and that they can count on the adults in their lives. . . . [Mother] missing visits undermines and disregards the children’s psychological and emotional security.”
· The children are happy and thriving in Grandmother’s care. She addresses their physical, mental, developmental, and emotional needs. The children are bonded to their extended family, which consists of Grandmother’s husband and other children living in Grandmother’s home. The children “need a permanent home,” and “[f]rom the children’s point of view, that home is [Grandmother’s] home.”
Based on these factors, the court found that termination of Mother’s parental rights was “strictly necessary from the children’s point of view.”
¶9 Mother challenges the juvenile court’s determination that termination of her rights was strictly necessary. “Whether a parent’s rights should be terminated presents a mixed question of law and fact.” In re B.W., 2022 UT App 131, ¶ 45, 521 P.3d 896 (quotation simplified), cert. denied, 525 P.3d 1269 (Utah 2023). “We will overturn a termination decision only if the juvenile court either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” Id. (quotation simplified).
¶10 Mother asserts (1) that the court did not appropriately weigh certain evidence and (2) that the court inappropriately focused on the needs of the adults rather than the children by basing its decision on Mother and Grandmother’s inability to “coparent” the children.
¶11 Before terminating a parent’s rights, the court must find that termination is “strictly necessary to promote the child’s best interest.” In re B.T.B., 2020 UT 60, ¶ 60, 472 P.3d 827. And this analysis must be undertaken from the child’s point of view. See Utah Code § 80-4-301(1); In re B.T.B., 2020 UT 60, ¶ 64. “Termination is strictly necessary only when, after exploring possible placements for the child, the juvenile court concludes that no other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights.” In re J.P., 2021 UT App 134, ¶ 15, 502 P.3d 1247 (quotation simplified). “If the child can be equally protected and benefited by an option other than termination, termination is not strictly necessary.” Id. (quotation simplified).
¶12 The strictly necessary analysis “is designed to ensure that the court pause long enough to thoughtfully consider the range of available options that could promote the child’s welfare and best interest.” In re B.T.B., 2020 UT 60, ¶ 69. “[I]f a court has complied with its statutory obligations, its resultant best interest determination is entitled to deference.” In re B.W., 2022 UT App 131, ¶ 69. Thus, a parent’s mere dissatisfaction “with the manner in which the juvenile court weighed the evidence . . . has no traction on appeal.” In re J.P., 2021 UT App 134, ¶ 23.
¶13 Mother argues that the court’s finding that Brother was upset when she missed visits should weigh against a finding that termination was strictly necessary. She also asserts that the court should have given more weight to her recent history of stopping her inappropriate comments to Brother rather than inferring that she was likely to resume such comments in the future. These arguments ultimately take issue with “the manner in which the juvenile court weighed the evidence” rather than its compliance with its statutory mandate. See id. The court’s findings are entitled to deference, and we will not disturb them on appeal. See In re B.W., 2022 UT App 131, ¶ 69.
¶14 Mother next asserts that the court’s focus on her and Grandmother’s inability to “co-parent” the children was inappropriate and led it to consider the strictly necessary analysis from the adults’ perspective rather than the children’s perspective. See Utah Code § 80-4-301(1) (dictating that the strictly necessary analysis must be undertaken from the child’s point of view). Mother argues that a permanent custody and guardianship order does not result in “co-parenting” but rather involves “the Guardian call[ing] the shots” while “the parent has a handful of residual rights.” We take Mother’s point that co-parenting may not have been quite the right term to use in describing the relationship between a parent and a permanent guardian.[1] However, we are more concerned with the substance of the court’s analysis than the term it used. And that analysis indicates that the court’s true concern was whether it was in the children’s best interests to be pitted between a parent and guardian who could neither cooperate nor communicate with one another.
¶15 “[L]ong-term guardianship arrangements are typically only in a child’s best interest where the guardians and the parent have a working, relatively healthy relationship in which they are both willing to work together to preserve the parent-child relationship and where the child has a healthy relationship with both the guardian and the parent.” In re J.P., 2021 UT App 134, ¶ 22 (quotation simplified). Thus, when a parent and guardian have “little to no relationship,” the particular circumstances of the case may indicate that permanent custody and guardianship will not meet the children’s needs as well as termination of parental rights. See id. That is what the juvenile court found here, and such a finding was not an abuse of its discretion under the circumstances.
¶16 Furthermore, we are not convinced that the juvenile court inappropriately conducted the strictly necessary analysis from the adults’ point of view rather than that of the children. The court explicitly discussed the effect Mother and Grandmother’s inability to cooperate had on the children, finding that being put in the middle of the conflict was “unhealthy” for the children’s “emotional development and wellbeing” and undermined their stability, that the children suffered when Mother did not communicate with Grandmother about missing visits, and that Mother herself acknowledged that the conflict was “unhealthy” for the children. These findings indicate that the court considered the conflict between Mother and Grandmother from the children’s point of view in determining that the conflict made termination of Mother’s rights strictly necessary.
¶17 The juvenile court here carefully considered whether the children could be equally benefited and protected by a permanent custody and guardianship arrangement as opposed to termination of Mother’s parental rights. It also made detailed findings in support of its determination that termination was strictly necessary from the children’s point of view. Accordingly, the juvenile court’s decision to terminate Mother’s parental rights is affirmed.
[1] Nevertheless, as the guardian ad litem observes, it is not apparent from the record that Mother was “up to the tasks involved with residual parental rights,” given that she has not paid child support, has not respected the boundaries Grandmother has put in place, has not progressed past supervised visitation, and has disappointed the children by failing to communicate about missed visits.
This is a good question and one that arises frequently in one form or another; a parent either can’t or won’t provide personal care and supervision of the parties’ children his/her scheduled parent-time or custody yet does not want the other parent to care for the children in his/her absence.
Some parents try to pull this stunt because either 1) they are territorial about “my time” with the children and thus can’t stand the idea of the other parent caring for the children during “my time”; or 2) they maliciously want to deny the other parent the opportunity to provide this care for the children. Others try to pull this stunt because they are afraid they will lose the child custody or parent-time they were awarded if they allow the other parent the opportunity to provide care for the children (yet believe that if someone else provides the care that somehow makes retaining custody and parent-time more “secure”). This is wrong, and is something you can take to the court to complain about and seek new court orders to remedy.
But sometimes a parent occasionally wants to leave the children in the care of someone else for perfectly reasonable, even laudable reasons, such as wanting the kids to enjoy time with grandma and grandpa or with the cousins, a sleepover at a friend’s house, and things like that. Clearly, it’s not defensible if it is the rule and not the exception, but there is nothing wrong with this on occasion. Indeed, refusing to be flexible and to allow a parent to do this for your kids is unfair to your kids.
Wendy M. Brown, Debra M. Nelson, and Benjamin Miller, Attorneys for Appellant
Blair T. Wardle, Attorney for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN D. TENNEY concurred.
MORTENSEN, Judge:
¶1 Elizabeth Lydia Meyer’s[1] ex-husband (Father) discovered bruising on their daughter (Child) after picking her up from Meyer’s home. The State charged Meyer with child abuse and, at a bench trial, used a process-of-elimination approach to argue that Meyer was the only possible cause of the bruising. The district court convicted Meyer, and she now appeals. Meyer asserts that the court erred in admitting the preliminary hearing testimony of her now-husband. We agree that this action was erroneous and prejudiced Meyer, so we vacate her conviction.
BACKGROUND
¶2 One Wednesday in July 2018, Father picked up Child, then two years old, from Meyer’s home for a regular midweek visit. Meyer and Father had been through a “fairly contentious” divorce, and their relationship was sometimes “volatile,” so Father had made it a habit to record via cellphone his pickups of Child. His video recording from this day shows marks on the upper portions of both of Child’s arms. But Father did not notice the marks until later, when he was at a restaurant with Child. Father exchanged texts with Meyer about the marks:
Father: I noticed that [Child] has what looks like bruises on her arm. Is she okay?
Meyer: Yes, she’s fine.
Father: How did she get those marks?
Meyer: How do children get the majority of their bruises? What direction are you trying to go with this?
Father: I’m just concerned because the bruising pattern is not consistent with normal childhood injuries.
Meyer: Since when did you become an expert in that matter? I understand that you want to pretend to care about my daughter, but I do not wish to have you go on a third witch hunt and falsely accuse someone like you already have done twice, even though we both know you’re dying to. You do not make any of her medical appointments. And the last I knew you have not completed any courses in the direction. So please leave your harassing comments to yourself.
¶3 After dinner, Father drove to the police station and asked for an officer to examine Child’s arms. An officer (Officer) and a caseworker (Caseworker) from the Division of Child and Family Services (DCFS) met with Father and photographed Child’s arms approximately two hours after Father had picked up Child.
¶4 Officer and Caseworker then visited Meyer’s home. Outside, they met Michael Glenn, Meyer’s then-boyfriend whom she married before the case went to trial. Glenn was initially “defiant” and did not want them to enter the house, but when they showed him photos of Child’s bruises, he was concerned and let them in.
¶5 Officer and Caseworker entered the house and spoke with Meyer, who was very upset. Officer asked Meyer what could have caused bruising on Child’s arms, and Meyer gave multiple possible explanations, including Child falling out of the car when she arrived home from daycare, Child playing with hair ties that were like rubber bands (which she snapped on her arms), or Child playing roughly with her older brother and sometimes getting rug burns from the roughhousing. Caseworker asked Meyer how she had picked Child up when Child fell out of the car after returning from daycare, and Meyer responded along the lines that she picked Child up like any mother would and cleaned her face. Meyer also reported that she had caused a mark on Child’s upper arm when Child ran into the street and Meyer pulled her back. Caseworker showed Meyer photos of Child’s bruises, and Meyer was very surprised, saying, “They were not like that.”
¶6 Glenn gave Officer contact information for Child’s daycare provider (Daycare Provider). When Officer spoke to Daycare Provider on the phone, she confirmed that Child had been in her care that day. Daycare Provider also confirmed that she had asked Meyer about a mark on Child’s arm when Meyer picked Child up that day and that Meyer told her she had grabbed Child to prevent her from running into the street.
¶7 The next day, Father took Child for a physical exam, which was completed by a forensic nurse examiner (Nurse). In her report, Nurse identified “[p]ositive physical findings of injury to bilateral upper arms and left forearm” and described the upper arm injuries as “circumferential and linear with equal spacing between” them and stated that the bruises were “highly indicative for a squeezing mechanism and physical abuse.” Child was not returned to Meyer’s care.
¶8 The case was transferred to a detective (Detective), who called Meyer two days after the alleged incident and recorded the phone call. During the call, Meyer implied that Father was the source of Child’s bruises because, according to her, Child had no bruises until she was in Father’s care and Meyer believed that “[h]e [was] trying to get [her] daughter away from [her].” Meyer was very upset during the call and indicated that she had been previously accused of child abuse, presumably by Father. Meyer also stated that she did not see any bruises or marks on Child— other than the mark from the incident she reported of grabbing Child to stop her from running into the road—before giving Child to Father. But she explained that Child would sometimes scratch herself, leaving marks, and hit and bite things. Meyer also spoke about Glenn’s whereabouts on the day of the incident, indicating that Glenn was asleep when Child came home and remained asleep until after Father had picked Child up.
¶9 Detective wrote in his police report that Child’s older brother, then four years old, “was asked where his sister got the marks on her arm and he said that it was from someone who had power and squeezed hard.” Detective spoke to Daycare Provider, though he did not inspect her home; perform a background check on her; or speak with the parents of other children she babysat or with the three children she had living with her, who were ages fourteen, ten, and eight and may have had access to Child. Detective later testified that he didn’t really consider Daycare Provider a suspect after speaking with her. He also ruled out Glenn as a suspect based on Meyer’s statement that Glenn had been asleep between the time Child came home from daycare and the time Father picked up Child. However, in his report he wrote that he told Meyer he didn’t think the incident causing the bruising had happened on that day. But at trial he testified that, based on his investigation, the timeline he established was that there were no visible bruises—other than the one caused by Meyer stopping Child from running into the street—until the time between Meyer picking Child up from daycare and Father picking her up from Meyer within the next forty-five minutes.
¶10 In August 2018, another officer (Sergeant) interviewed Meyer in person at Detective’s request. Meyer’s statements were consistent with those she had made previously. Specifically, Meyer again stated that Glenn was asleep when Child returned from daycare and did not wake up until after Child left with Father.
¶11 In December 2018, the State charged Meyer with one count of child abuse, a class A misdemeanor.
¶12 The district court held a preliminary hearing in May 2019. Among other witnesses, the State subpoenaed Glenn to testify at the hearing. When he was called to testify, he was hostile, and the court threatened to hold him in contempt and take him into custody. But Glenn ultimately did testify. While he first declared that it was “100 percent incorrect” that he told Officer and Caseworker that the marks had not been on Child in the morning, after reviewing Officer’s bodycam footage, he admitted that he did say that. He also testified that after waking up that morning, he went straight to the car and didn’t notice any marks on Child’s arms, but he said he was busy “concentrating on driving and getting to and from.” He described how he went with Meyer to drop Child off at daycare in the morning. He testified that he was asleep when Meyer brought Child home. And he declared that he did not cause Child’s bruising.
¶13 Sometime after the preliminary hearing, Meyer married Glenn, and Meyer’s defense counsel (Defense Counsel) informed the State via email that Glenn intended to invoke his spousal privilege related to testifying at trial. The State told Defense Counsel that Glenn was “still required to show up to court to produce evidence that he [was], in fact, married . . . and take the stand to actually invoke the privilege.” The prosecutor insisted, “This is important because then he will become an unavailable witness. As an unavailable witness, I will then be able to play his preliminary hearing audio in lieu of his testimony.” Defense Counsel indicated that she “had anticipated that [the State] would be able to get Glenn’s preliminary hearing testimony in at trial.”
¶14 When Defense Counsel later informed the State that Glenn would be on bed rest following surgery on the date of trial (which had been continued multiple times), they discussed the possibilities of Glenn testifying via video during trial or of filing stipulated facts related to his testimony. But Glenn filed a motion to quash the subpoena against him. The State then sent Defense Counsel a transcript and redacted audio file of Glenn’s preliminary hearing testimony that it intended to have admitted at trial, and Defense Counsel responded, “I would absolutely object to both the transcript and the audio coming in at trial. . . . Glenn’s testimony is hearsay[,] and to introduce it would also be a violation of my client’s confrontation rights.” Defense Counsel explained, “The Utah Supreme Court has ruled that because there is a different motive for examining witnesses at a preliminary hearing than that at a trial, said testimony is inadmissible.”
¶15 The State then filed a motion to admit Glenn’s preliminary hearing testimony. After receiving briefing and hearing oral argument, the court found that Glenn’s testimony fell under the exception to hearsay in rule 804(b)(1) of the Utah Rules of Evidence for former testimony of an unavailable witness. The court acknowledged caselaw indicating that defendants are restricted in developing testimony at preliminary hearings, see State v. Goins, 2017 UT 61, ¶¶ 32–33, 423 P.3d 1236, but it distinguished that caselaw from the facts of this case and admitted the testimony.
¶16 The court held a bench trial in May 2021. In its opening statement, the State indicated that “through the process of elimination,” it would “show beyond a reasonable doubt that it was . . . Meyer who committed child abuse.”
¶17 In addition to Glenn’s testimony, Daycare Provider testified at trial that Child had been in her care from roughly 9:00 a.m. to 4:45 p.m. that day. She stated that she did not see any marks or injuries on Child when Child was dropped off and she never saw marks like those photographed, but she did notice a different mark on Child’s arm later in the day, and this was the mark she asked Meyer about. She also testified that on the day of the bruising, she did not take Child to the park, she did not know of any equipment Child could have accessed that would have caused the injuries, Child did not get injured playing with toys, Child did not receive any injuries while in her care, and Child did not cry or appear to be in pain while in her care. She admitted, though, that she was aware that Child had been “kicked out of her previous day care . . . for playing too rough” and that Child “play[ed] really rough with toys and hit[] dolls a lot.”
¶18 Nurse testified that after examining Child, she “speculated . . . that because of the spacing, and the shape, and the location of the injuries, the colors that [she] saw, they were most definitely bruises,” the spacing of which “could fit a hand.” She said, “I’m not telling you it’s fitting a hand because—you know, I can’t say it was a hand unless I watched it happen, but I can tell you that those are bruises that are in a linear form that you don’t just get from falling down.” She further testified that based on the location, direction, and shape of the bruising, she did not believe that the incidents Meyer had described as possible accidental sources of injury had caused Child’s bruises. She also testified that the marks were “fresher bruises” that, based on coloration, could have been caused within hours of when Officer and Caseworker photographed Child’s injuries. But she acknowledged that “there’s no scientific way to date a bruise” and said that while it was “likely that it occurred” that day, “literally there is no way to determine when it happened.”
¶19 The State played a clip from the recorded interview between Meyer and Sergeant, in which Meyer stated that Child had a temper tantrum after arriving home from daycare and that Child tried to get out of being held and Meyer needed to grab her arm from the side.
¶20 In its closing argument, the State asked, “[W]ho caused the abuse?” and answered that “this is where we get into the process of elimination.” The State then explained its theory that the evidence proved that no one else could have caused the bruising, including Glenn, who “slept through the whole thing.”
¶21 The court ultimately found Meyer “guilty of a lesser-included offense of [c]lass B misdemeanor, child abuse, for having inflicted this injury on [Child] in a reckless manner.” The court provided its rationale, explaining in part that it “found highly credible the testimony” of Nurse that the “bruising was consistent with the types of bruising she has seen in her child abuse conferences and trainings.” The court ruled out Glenn as a potential source of the injuries by saying, “You know, . . . Glenn is asleep by the time [Child] gets home and doesn’t really interact at all. And then we know for a fact that the injuries took place . . . definitively prior to when [Father] arrive[d] based off of the video.” The court concluded, “And so there’s just no doubt in the [c]ourt’s mind that Mom, you lost your cool, you crossed a line, you squeezed your daughter’s arms, and it left that injury. It couldn’t have been anyone else.” The court sentenced Meyer to 180 days of jail but suspended 179 days. It also ordered a fine and probation.
¶22 Meyer subsequently filed a motion for a new trial through Defense Counsel. Defense Counsel then withdrew from representing Meyer. Meyer appeared pro se and asked the court to appoint counsel, but the State objected, and the court decided that Meyer did not qualify for appointed counsel based on her income. The court ultimately denied Meyer’s motion for a new trial. Meyer now appeals.
ISSUE AND STANDARD OF REVIEW
¶23 Meyer argues on appeal that Glenn’s “preliminary hearing testimony should not have been admitted at trial” under an exception to the bar on hearsay.2 “When reviewing rulings on hearsay, [appellate courts] review legal questions regarding admissibility for correctness, questions of fact for clear error, and the final ruling on admissibility for abuse of discretion.” State v. Leech, 2020 UT App 116, ¶ 31, 473 P.3d 218 (cleaned up), cert. denied, 481 P.3d 1039 (Utah 2021). But even “if we determine that the hearsay testimony should not have been admitted, we will reverse only if a reasonable likelihood exists that absent the error,
Meyer also argues that the district court “committed plain error by failing to obtain a valid waiver of counsel before having [Meyer] represent herself on her motion for a new trial.” Because we rule in her favor on the first issue, we need not address this argument.
the result would have been more favorable to the defendant.” Id. (cleaned up).
ANALYSIS
Similar Motive and Opportunity
¶24 Meyer argues that the district court erred in admitting Glenn’s preliminary hearing testimony. She asserts that Glenn’s testimony fails to qualify for the rule 804 exception to the evidentiary bar on hearsay. This exception applies when “the declarant is unavailable” and the declarant’s testimony was “given . . . at a trial, hearing, or lawful deposition” and is now “offered against a party who had . . . an opportunity and similar motive to develop it by direct, cross-, or redirect examination.” Utah R. Evid. 804(b)(1). Meyer argues that caselaw on this point “compels the conclusion that the admission of Glenn’s preliminary hearing testimony was erroneous” because that caselaw indicates that the motive to develop an adverse witness’s testimony at a preliminary hearing differs from the motive to do so at trial.
¶25 In State v. Goins, 2017 UT 61, 423 P.3d 1236, our supreme court discussed the effect of the 1994 amendment to Article I, Section 12 of the Utah Constitution, which limited “the function of preliminary examination to determining whether probable cause exists,” id. ¶ 31 (cleaned up) (discussing Utah Const. art. I, § 12). The court stated that, “by and large,” this provision “places most credibility determinations outside the reach of a magistrate at a preliminary hearing.” Id. ¶ 33. Therefore, “[o]ur constitution specifically limits the purpose of preliminary hearings in a manner that can undercut defense counsel’s opportunity to cross-examine witnesses at a preliminary hearing and thereby modify the interest counsel has in developing testimony on cross-examination.” Id. ¶ 41. But the court “eschewed a blanket rule” of inadmissibility for preliminary hearing testimony because it could “envision scenarios where, for whatever reason, defense counsel possesses the same motive and is provided the same opportunity to cross-examine as she would have at trial.” Id. ¶¶ 36–37. However, the court indicated that “such cases might prove rare.” Id. ¶ 36.
¶26 The Goins court then analyzed the motive for cross-examining a witness at the preliminary hearing by considering the facts of the case, which included the defendant allegedly brandishing a knife and accusing the later-unavailable witness of stealing his phone, after which the witness fled and the defendant assaulted the witness’s acquaintance. Id. ¶¶ 3–6. The court held that it was “apparent on the record . . . that [the defendant’s] counsel did not possess the same motive to develop testimony at the preliminary hearing that she would have had at trial” because the witness’s “testimony referenced concerns with [the defendant] and a prior incident between” the pair, so the defendant’s “counsel had a motive to develop this testimony and question [the witness’s] credibility” at trial “that went beyond a preliminary hearing’s constitutionally limited purpose.” Id. ¶ 46.
¶27 Subsequent cases have reached similar conclusions. In State v. Ellis, 2018 UT 2, 417 P.3d 86, a defendant faced a charge of aggravated robbery for allegedly robbing a cupcake shop at gunpoint, id. ¶¶ 1, 4. The store clerk testified at trial as to the events within the store, id. ¶ 19, but another witness—a witness who saw the perpetrator leave the scene, run across the road, and get into a car whose license plate she then reported—was not able to be in court on the day of the trial, id. ¶¶ 7–8, 16. The court admitted her preliminary hearing testimony, id. ¶ 19, but our supreme court held that this was improper, id. ¶ 40. It stated that in Goins, it had “conditioned the admissibility of preliminary hearing testimony on a showing that defense counsel really did possess the same motive and was permitted a full opportunity for cross-examination at the preliminary hearing.” Id. ¶ 39 (cleaned up). And it said that “Goins foreclose[d] the admissibility of the . . . preliminary hearing testimony” because, “as in Goins, . . . [the court had] no basis to conclude that [the defendant’s] counsel’s preliminary hearing motive to cross-examine was similar to what would have existed at trial.” Id. ¶ 40 (cleaned up).
¶28 Similarly, in State v. Leech, 2020 UT App 116, 473 P.3d 218, cert. denied, 481 P.3d 1039 (Utah 2021), this court applied the holding of Goins where a defendant faced charges related to the alleged kidnapping of two men and murder of one of them, id. ¶¶ 22–24. The court considered the admissibility of preliminary hearing testimony from a man who helped tie up the victims, drove the group to the murder site, supplied the gun, and observed the murder. Id. We noted that “whether the defense had a similar motive to develop prior testimony for purposes of rule 804(b)(1) will often turn on the nature of a witness and her testimony.” Id. ¶ 40 (cleaned up). Where the witness in question “was not only a critical eyewitness, but also an accomplice to each of the crimes,” we determined that “[t]he opportunity to cross-examine this type of witness at a preliminary hearing will likely be a poor substitute for confronting the witness at trial, where the jury can observe [the witness’s] demeanor and assess . . . credibility firsthand.” Id. Accordingly, we held that “the State did not demonstrate that [the defendant] had an adequate opportunity and similar motive to cross-examine [the witness] at the preliminary hearing as he would have had at trial.” Id. ¶ 41.
¶29 The district court believed that the present case was distinguishable from Goins because that case involved an “incident that could have caused motive for [the witness] to fabricate or fashion . . . testimony in such a way that would be damaging to [the defendant].” See Goins, 2017 UT 61, ¶ 46. On the other hand, the court stated, “in the case before the [c]ourt, there’s nothing that has been pointed to specifically that would indicate that there is a similar motive for . . . Glenn to have fabricated any of his testimony.” But the court’s analysis on this point was inadequate, as a witness’s motive for fabrication is not the only circumstance that might impact a defendant’s motive for questioning a witness at a preliminary hearing. This is obvious from Ellis, where the witness had no motive to fabricate testimony and our supreme court still held that it had “no basis to conclude that [the defendant’s] counsel’s preliminary hearing motive to cross-examine was similar to what would have existed at trial.” 2018 UT 2, ¶ 40 (cleaned up).
¶30 The district court erred in concluding that the motives at the preliminary hearing and at trial were the same. The court stated that during the preliminary hearing “there was an opportunity to cross-examine [Glenn] as to whether he was the source of . . . the injuries, whether he abused [Child].” “In fact,” it pointed out, “the State specifically questioned him on that.” It continued, “[The preliminary hearing judge] would have never shut that down and said, ‘No, even though the State had questioned specifically, did you cause the injuries, [d]efense you’re prohibited from going after him to follow up on that question.’ Certainly that would have been permitted by . . . the [j]udge.” But this analysis does not align with our supreme court’s in Goins. The Goins court specifically addressed the reality that a per se rule of admissibility for preliminary hearing testimony of unavailable witnesses “places magistrates in the uncomfortable position of choosing between conducting preliminary hearings in fidelity with article I, section 12 and permitting the type of examinations” that were standard before the constitutional amendment limited the scope of preliminary hearings. 2017 UT 61, ¶ 34. The district court fails to accept that, as the supreme court suggests, Defense Counsel could have reasonably expected the court to limit questioning to that which was necessary for probable cause and prepared to cross-examine Glenn accordingly. See id. We reasoned similarly in Leech, where the defendant’s “counsel admitted that he did not pose a question during his cross-examination of [the witness] that was objected to and sustained, but he maintained that he did not have the same opportunity and motive to cross-examine [the witness] as he would have had at trial because he understood the limited scope of the hearing.” 2020 UT App 116, ¶ 28 (cleaned up). Accordingly, the district court erred in determining that Meyer had the same motive and opportunity to question Glenn in the preliminary hearing as she did at trial because the judge would— presumably—not have prevented follow-up questions to those that were asked.
¶31 Instead, the court should have recognized that the motives changed with respect to questioning witnesses at the preliminary hearing versus at trial. The State was clear that its case was based on a process of elimination. This point is hardly significant at a preliminary hearing, which seeks to determine if there was probable cause—a low standard—for a jury to conclude Meyer caused the bruising. See id. ¶ 20 (reciting the magistrate’s explanation at the defendant’s preliminary hearing that “different standards of proof apply at a probable cause hearing than apply at trial” and that “probable cause means enough evidence that the court is convinced that a reasonable jury could find, not that they necessarily would, but that they could find the offenses charged were committed and that [the defendants] were the individuals who committed them” (cleaned up)). Moreover, at a preliminary hearing, the facts are construed in the light most favorable to the State’s case. See id. (indicating that the magistrate informed the defendant that “one of the most important [differences] is that any doubts or questions about evidence at a preliminary hearing get resolved in favor of the State and against the defendants” and explained that “the benefit of the doubt goes to the State in a preliminary hearing” (cleaned up)). On the other hand, at trial the State must prove a defendant’s guilt beyond a reasonable doubt, see, e.g., id. ¶ 64, and here the State needed to eliminate all other possible suspects beyond a reasonable doubt during trial. So the motive in questioning each witness at the preliminary hearing was to show lack of probable cause that Meyer was the source of Child’s bruises, while the motive at trial was to introduce reasonable doubt as to Meyer causing the bruises by convincing the court that someone else may have done so. In other words, with respect to Glenn, the motive shifted from showing that Glenn was the more likely source of the bruising to showing that Glenn could have caused the bruising such that there was reasonable doubt that Meyer caused it. Therefore, we hold, as did the Goins court, that it was “apparent on the record . . . that [Meyer] did not possess the same motive to develop testimony at the preliminary hearing that she would have had at trial” because at trial Meyer “had a motive to . . . question [Glenn’s] credibility that went beyond a preliminary hearing’s constitutionally limited purpose.” See 2017 UT 61, ¶ 46.
Prejudice
¶32 “A determination of error in admitting [Glenn’s] preliminary hearing testimony is not alone enough to sustain a reversal. We must also find that error prejudicial. Prejudice in this setting requires a showing of a reasonable likelihood that the decision to admit [Glenn’s] preliminary hearing testimony altered the . . . verdict.” See State v. Ellis, 2018 UT 2, ¶ 41, 417 P.3d 86 (cleaned up).
¶33 The relevant caselaw indicates that errors in admitting preliminary hearing testimony are sometimes harmless. In Goins, the court held that the error was prejudicial as to one charge but harmless as to another because on the first charge, the “testimony was the primary evidence admitted in support of” that charge but on the second charge, the testimony did not address the major underlying facts and the guilty verdict was supported by other witness testimony and corroborating photographs. State v. Goins, 2017 UT 61, ¶¶ 50–51, 423 P.3d 1236.
¶34 Similarly, in Leech, this court identified prejudice with respect to one count but not as to three others. State v. Leech, 2020 UT App 116, ¶ 48, 473 P.3d 218, cert. denied, 481 P.3d 1039 (Utah 2021). For the first, we determined that the “charge could not be proven without crediting” the testimony of the kidnapping victim who wasn’t killed and “there [was] a reasonable likelihood that the jury would not have believed” this person “without the corroboration [the unavailable witness’s] testimony provided.” Id. ¶ 63. But we held that two of the convictions were independently supported by three other witnesses. Id. ¶ 52. And for the final charge, one of its elements “was not disputed at trial” and the other two elements “did not depend on the veracity of the [unavailable witness’s] account of the murder itself.” Id. ¶ 62.
¶35 In Ellis, the court found prejudice where “the preliminary hearing testimony in this case was central to the prosecution’s case on this charge.” 2018 UT 2, ¶ 2. The court so concluded because the witness “provided key pieces of evidence that the jury likely credited,” including her being “the only witness who could testify that the robber fled in a car”—making her “the crucial link for what occurred after [the clerk] lost sight of the robber.” Id. ¶¶ 43, 45.
¶36 Here, the court’s error in admitting Glenn’s testimony prejudiced Meyer because there is a “reasonable likelihood that the decision to admit [Glenn’s] preliminary hearing testimony altered the . . . verdict.” See id. ¶ 41 (cleaned up). The State’s presentation of the case against Meyer as a “process of elimination” impacts the fact-finder’s weighing of the evidence such that, for Glenn’s testimony to have been prejudicial, Meyer need show only that without the testimony, the court would have had a reasonable doubt that she was the source of the injuries. Meyer points us to this helpful insight offered by the Supreme Court of Illinois: “[I]f [the prosecution] intend[s] to obtain a conviction by the process of elimination by showing that no one else but [the] defendant could have been guilty, the burden [is] upon it to show that there was no one else in the other room.” People v. Boyd, 161 N.E.2d 311, 315 (Ill. 1959).
¶37 We agree with Meyer that removing Glenn’s erroneously admitted testimony makes a finding of reasonable doubt as to Meyer’s guilt much more likely. While Meyer’s own testimony corroborated Glenn’s account from the preliminary hearing that he was sleeping during the time Child was home from daycare until Father picked her up, that is not the only information Glenn provided. Glenn also testified that he did not cause the bruising. And he testified that, on the morning in question, he woke up and went directly to the car to drive Child to daycare, giving him no opportunity to interact with Child such that he could have caused her bruising that day.
¶38 The court, in providing the rationale for its conviction of Meyer, explained that it “found highly credible the testimony of” Nurse that the “bruising was consistent with the types of bruising she has seen in her child abuse conferences and trainings.” And it said, “You know, . . . Glenn is asleep by the time [Child] gets home and doesn’t really interact at all. And then we know for a fact that the injuries took place . . . definitively prior to when [Father] arrive[d] based off of the video.” The court clearly found that the bruises were caused before Father arrived, but it did not make a specific finding that the bruises could not have been caused earlier in the day. And Nurse, whose testimony the court found “highly credible,” testified multiple times that she could not provide a timeline for the cause of the bruising. When asked if it was “possible to at least rule out certain time frames,” Nurse responded, “What we were trained was that a fresher bruise is red or purple. . . . Red or purple means that this happened probably fairly close to the time that I saw her because of the darkness of the color, but . . . there’s no scientific way to date a bruise.” Nurse agreed that the bruises could have been caused “within hours.” But when Defense Counsel pressed, asking, “You testified a minute ago that you—it’s your opinion that with bruising, from what you observed, it’s more likely that it occurred like four hours before?” Nurse answered, “That day.” Defense Counsel stated, “That day. Two hours before, five hours before.” Nurse responded, “Purple-red is the colors you see first with bruising and there is—literally there is no way to determine when it happened.”
¶39 Given that removing Glenn’s testimony would have heightened the possibility that Glenn caused the injuries at some time outside the window between Child’s return from daycare and Father’s arrival, we conclude that Meyer was prejudiced. The State’s process-of-elimination approach makes Glenn’s preliminary hearing statements that he did not cause the bruising and did not have the opportunity to cause the bruising before Child went to daycare all the more significant. The State admitted as much when it argued for the admission of Glenn’s testimony, saying that “his testimony [was] necessary to the State to prove the case at trial.” We are hard-pressed to conclude that the testimony’s faulty admission was harmless when the State was so adamant that the testimony was essential in the first place. And the State fails to argue that Meyer was not prejudiced by the faulty admission or to point us to other evidence corroborating these key points of Glenn’s testimony. So without the preliminary hearing testimony, Glenn was not excluded—or at least not as easily excluded as he would have otherwise been. The State’s theory required it to eliminate all other possible suspects; without Glenn’s preliminary hearing testimony, it did not do so, and it is likely that the court would have concluded as much. In this respect, Glenn’s testimony is like that at issue in Ellis, because it was “central to the prosecution’s case” and “provided key pieces of evidence” under the State’s process-of-elimination approach. See 2018 UT 2, ¶¶ 2, 43. And this testimony is unlike that deemed nonprejudicial in Goins and Leech because Meyer’s conviction did “depend on the veracity of [Glenn’s] account.” See Leech, 2020 UT App 116, ¶ 62. Accordingly, the court’s error in admitting Glenn’s preliminary hearing testimony prejudiced Meyer.
CONCLUSION
¶40 The district court erred in admitting Glenn’s preliminary hearing testimony, and Meyer was prejudiced by that error. We therefore vacate Meyer’s conviction and remand this matter for further proceedings consistent with this opinion.
[1] Since the time of her charges, the defendant has remarried. She uses a different last name but still accepts the use of “Meyer.” We continue to use “Meyer” for simplicity and for consistency with the case name.
What can I legally do if my child’s mother picks up our child in an Uber without a car seat? She is 5 years old, about 50 lbs. She is also the custodial parent with full custody rights, so she feels she can do anything she wants. Can I call the cops?
I’m old enough to remember when it was not illegal to wear a seatbelt. I’m old enough to remember when it was not illegal to permit a child to ride in a car without a seatbelt. I remember when there were no laws that children under a certain weight or height must ride in car seats when riding in cars. Most jurisdictions now have laws that require children of a certain age, weight, or height be strapped into a car seat when riding in a car.
So, the first thing you will need to do is find out whether it is illegal for your ex-wife to have your five-year-old, 50 pound child ride in a car without a car seat. You’ve mentioned that your ex-wife will often have your child picked up by Uber (a ridesharing service), and so you will want to ensure that even if there are laws that require a child to ride in a car seat when writing in a car, there are no exceptions for ridesharing services, taxicabs, buses, etc.
If, after conducting your research, you learn that it is illegal for your ex-wife to have your child ride in a car or when using a ridesharing service without having the child strapped into a car seat, then you would be well within your rights to report this to the police. just because you could do this, however, does not mean that you should, at least without first notifying your ex-wife that what she is doing is illegal and places your child in danger, and that if she refuses to comply with the law you will then report her to the police and perhaps even take the matter up with the court to get an order that requires her to secure the child in a car seat when traveling by car under circumstances when the law requires a car seat be utilized.
Do abusive parents get sole custody of their children, even when their children don’t want them to have it? If the children want to stay with a relative who can take care of them instead, can the court award the relative custody of the children and only allow the abusive parents visitation rights?
Do abusive parents get sole custody even when their children don’t want that? Yes, that can happen. Just because it can happen does not mean it will always happen, but there are many times when abusive parents still get custody of their children. The reasons can vary, but usually they are (in no particular order):
the parents deny being abusive, and if there isn’t enough evidence to refute their denials, the court gets fooled into believing the parents.
the parents may be abusive, but not considered abusive enough to justify stripping them of their parental rights to child custody; in those situations, even though the court may not deprive the parents of child custody, the court can and often will condition the keeping of their custodial rights upon the parents refraining from future abuse and completing courses on good and proper parenting.
If children want to stay with a relative who can take care of them, can the court award the relative custody of the children and only allow the abusive parents visitation? Yes, that can happen too, but only if the court finds sufficiently compelling reasons to infringe upon the parents rights of custody in favor of someone else exercising custody of the children. a child merely expressing a preference for someone other than his or her parents is never enough to justify a change of custody from the parents to someone else. Interfering with the parents’ rights to custody of their own children is very difficult because those parental rights are considered some of the most basic of human and fundamental rights.
What should I do when a family court judge refuses to look at my evidence of abuse because my ex’s lawyer lied about me bringing it to him when I had a witness with me?
What you can or should do depends upon why the judge would not consider your evidence.
You say that the judge refused to review your evidence because the judge believed a lie that your ex’s lawyer told him (I presume) something along the lines of “Objection, Your Honor, I was never given a copy of these documents/photographs/recordings. I’m not prepared to address them.”
You claim that you can prove that your ex’s lawyer is lying because you had a witness with me when you delivered the evidence to your ex’s lawyer (I presume) well in advance of the hearing.
It appears that either the judge did not believe you, or, if you did not bring the witness with you to court, that the judge ruled that without the witness’s testimony the judge would not believe that you served your ex’s lawyer with the evidence, and thus would not allow you to present that evidence to the judge.
The lesson learned here?: when you deliver or serve documents/photographs/recordings to someone and need proof that you did so, use a method of delivery or service that provides an objective means of proving it. Have the lawyer or someone at his/her office sign for the documents/photographs/recordings when you or someone from the post office deliver(s) them. Or you could email the documents/photographs/recordings to the lawyer, which would another way of proving that you delivered/served them. Another thing you could do is file a copy with the court which, though it does not objectively prove you delivered/served the documents on the lawyer, the point is that if you went to the trouble of filing them with the court, then it’s more than likely you also delivered/served them on the lawyer too. Another thing you or your lawyer should do is file a certificate of service with the court that you or your lawyer served/delivered them.
STATE OF UTAH, IN THE INTEREST OF P.J.R., A PERSON UNDER EIGHTEEN YEARS OF AGE.
C.S.,
Appellant,
V.
STATE OF UTAH,
Appellee.
Opinion
No. 20220264-CA
Filed March 23, 2023
Sixth District Juvenile Court, Manti Department
The Honorable Brody L. Keisel
No. 1097003
Emily Adams, Freyja Johnson, and Caleb Proulx,
Attorneys for Appellant
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and DAVID N.
MORTENSEN concurred.
HARRIS, Judge:
¶1 C.S. (Mother) appeals an order terminating her parental rights regarding P.J.R. (Child). But Mother does not contest the juvenile court’s findings that there were grounds for termination and that termination was in Child’s best interest. Instead, Mother limits her appellate challenge to the court’s determination that the Division of Child and Family Services (DCFS) made reasonable efforts, during the course of the case, toward reunification of Mother and Child. Specifically, she claims that the court applied an incorrect evidentiary standard in arriving at its reasonable efforts determination and—alternatively—challenges the merits of that ultimate determination. We find Mother’s arguments unpersuasive, and therefore affirm.
BACKGROUND
¶2 In 2019, DCFS filed a petition seeking protective supervision of Mother’s five children, including Child. In the petition, DCFS alleged that Mother had abused and neglected Child, and specifically alleged (among other things) that, during an incident in the waiting room of a family counseling center, Mother “grabbed [Child] by the back-collar area of his shirt in such a manner that it restricted his ability to breathe and caused him to choke,” and then “shoved his face into the corner with force.” Even after Child “told Mother he was having difficulty breathing and that Mother was hurting him,” Mother “did not let up on his shirt or the forcing of his face into the corner.” At an ensuing shelter hearing, the juvenile court placed all five children in the temporary custody of DCFS.
¶3 Mother responded to the petition by admitting some of the State’s allegations and, with respect to the rest, neither admitting nor denying them; this response resulted in the court deeming the State’s allegations true. See Utah R. Juv. P. 34(e) (“A respondent may answer by admitting or denying the specific allegations of the petition, or by declining to admit or deny the allegations. Allegations not specifically denied by a respondent shall be deemed true.”). On the basis of Mother’s responses, the court adjudicated Child as abused and neglected by Mother. Mother appealed that adjudication order, and this court affirmed it but remanded for additional proceedings on issues not material to this appeal. See In re C.M.R., 2020 UT App 114, ¶ 33, 473 P.3d 184.
¶4 Following adjudication, the court issued a disposition order in September 2019, setting the primary permanency goal as reunification and the concurrent permanency goal as adoption. In connection with setting reunification as the primary permanency goal, the court adopted a service plan—prepared with Mother’s input and cooperation—and found, “by clear and convincing evidence,” that fulfillment of the plan’s terms would “constitute reasonable efforts on the part of . . . DCFS to finalize the permanency goals,” including reunification. Among other things, the plan required DCFS to “follow up with [Child]’s therapist to monitor his progress in therapy,” to follow up with Mother’s therapist regarding her treatment, to promptly communicate with Mother, to “assess [Mother]’s increase in parenting skills during supervised parent-time,” and to ensure that Child’s living, academic, and health needs were being addressed.
¶5 As the case progressed, friction arose between Mother and the DCFS caseworker. As Mother showed at trial, the conflict became apparent at one supervised visit between Mother and her daughters; in a “heated interaction,” the caseworker cut the visit short after observing Mother say certain things to her daughters that the caseworker deemed inappropriate. On a later occasion, the caseworker sent a text message to the guardian ad litem lamenting the fact that Mother received visitation with one of her daughters at all, noting that “[t]hese kids have been the victims of severe physical and emotional abuse for years.” Eventually, Mother refused to communicate with the caseworker (other than by text message) without her attorney present. Even the State’s attorney noticed that the caseworker was having a hard time keeping her “emotions out of this case,” and admonished the caseworker to be more circumspect in her communication.
¶6 Mother also came to believe that the caseworker was interfering with family therapy during the course of the case. Under the service plan, family therapy involving Mother and Child was to begin when Mother’s and Child’s therapists both recommended it, and the caseworker was supposed to follow up with both therapists. In December 2019, the caseworker apparently told Mother that Child’s therapist did not recommend face-to-face visits when, in fact, the caseworker had not yet communicated with Child’s therapist. The first documented communication between the caseworker and Child’s therapist about family therapy was in June 2020, about nine months after the service plan was put in place. However, some evidence shows that the caseworker had “reached out to [Child]’s therapist regularly throughout the case,” and that as of May 2020, Child’s therapist did not “recommend family therapy with [Mother] at this time.” But when the caseworker was asked at trial whether she communicated with Child’s therapist prior to June 2020, she stated that she did not recall. When the caseworker did reach out to Child’s therapist inquiring about family therapy, the therapist responded that before family therapy would be recommended, Mother would need to take a parenting course, continue her own therapy, and “take[] accountability for her actions and . . . learn[] . . . to regulate her own emotions.”
¶7 Shortly thereafter, Mother complained that the caseworker might be attempting to influence the therapists away from holding family therapy, and the caseworker then told the therapists that the court had instructed her to tell them that they were to communicate with each other (rather than through the caseworker as an intermediary) about “whether family therapy with [Mother] and [Child] would be in [Child’s] best interest.” By this point, Child’s therapist had come to believe that family therapy was now appropriate, and expressed interest in beginning the process. The caseworker said she would follow up to see whether Mother and Child were making progress from the therapy, but—apparently in response to Mother’s request that DCFS “back off”—she stated that she would “not be a part of the scheduling process.”
¶8 In August 2020, the caseworker learned that criminal charges had been filed against Mother, and informed the therapists of this fact. Mother believes that the caseworker implied that the conduct in question had occurred recently, when it had actually occurred prior to removal of the children from Mother’s care. After the therapists learned of the charges, communication between them seemed to halt, and family therapy between Mother and Child never did take place.
¶9 During the reunification period, the court held periodic review hearings to assess Mother’s progress under the service plan; at some of these hearings, Mother voiced concerns about the fact that family therapy was not occurring, and on other occasions she expressed concerns about certain statements the caseworker was alleged to have made. But for the most part Mother was nonspecific about what else DCFS could have done to improve its efforts; indeed, on at least one occasion, the court expressly asked Mother’s attorney if “there’s anything else . . . as far as services go . . . that could be provided by [DCFS],” or if there was “anything else that you think [DCFS] should be providing to help [Mother] complete the service plan,” and counsel responded that he did not “have any specific request of [the court] right now.” The most specific complaint Mother raised was in August 2020 when she filed a “motion to take evidence and make findings regarding reasonable efforts” in which she accused DCFS of “hostility” and “actively work[ing] against the reunification goal.”
¶10 But by the time this motion was filed, the court had already made—on several different occasions during the reunification period—specific findings that DCFS was making reasonable efforts toward accomplishing the stated permanency goals, including reunification. For instance, in November 2019, the court after a hearing found that “DCFS has provided and is providing reasonable efforts to finalize the permanency goals.” Several months later, the court made a similar finding, noting along the way that Mother’s attorney “could not articulate other efforts that DCFS should be making to further the permanency goals.” In August 2020, the court found that “DCFS has and continues to provide reasonable efforts to finalize the child/children’s permanency goals and to comply with its court ordered responsibilities.” And a few weeks after that, the court did so again, noting that “[n]o party suggested efforts/services that could be provided by DCFS which are not already being provided.” There is no record of Mother making any objection to any of these interim findings regarding reasonable efforts.
¶11 In November 2020, after fourteen months of reunification services and with a permanency hearing looming, the parties engaged in settlement negotiations and entered into a stipulation that resolved many of the issues in the case. The parties and counsel then appeared before the court to put the terms of their stipulation on the record. Following the hearing, counsel for the State prepared an order memorializing the events of that hearing, and circulated it to Mother’s counsel for review. Mother’s counsel did not object or otherwise comment on the proposed form of the order, and therefore the State submitted it to the court “as being stipulated to,” and the court entered it as an order of the court. That order recites that the parties stipulated that “DCFS or other agency/ies continue to make reasonable efforts to assist the family finalize the service plan and its permanency goals.” The order recites that the parties also stipulated that the court would “terminate reunification services” as to Child, and that “termination of those services” was in Child’s best interest. Based on this stipulation, the court changed Child’s primary permanency goal from reunification to adoption. Mother did not object to the terms of this order, either before or after its entry, and did not object to the change in permanency goal.
¶12 Thereafter, the State filed a petition seeking the termination of Mother’s parental rights regarding Child. Some months later, the parties again entered into negotiations and agreed to resolve some of the issues surrounding the State’s termination petition. In particular, Mother stipulated “to the Court finding that it is in Child’s best interests and strictly necessary for the Court to terminate her parental rights should the Court also find legal grounds for terminating her parental rights.” After entry of this stipulation, the court scheduled a two-day termination trial to consider whether grounds for termination existed and whether DCFS had made reasonable efforts toward reunification.
¶13 The trial took place in November 2021. When the parties and their attorneys appeared for the first day of trial, the State informed the court that it did not intend to call any witnesses in its case-in-chief and, instead, asked the court to “take judicial notice of all the filings in the . . . case.” Mother objected to the court taking judicial notice of such a large quantity of material, arguing that she would never be able to respond to everything in the docket and the court would not have time to review so many documents. Eventually, the State narrowed its request to all the “findings and orders specific to [Child],” and Mother did not object. The court then agreed to take judicial notice of all its interim findings and orders regarding Child. The State then asked the court to take judicial notice of the court-ordered child and family plan pertaining to Child, psychological evaluations of Mother and Child, and court reports pertaining to Child; Mother did not object to the court taking judicial notice of the plan, but did object to the court taking judicial notice of the evaluations and court reports. The court initially took the matter under advisement, but later decided to take judicial notice of the service plan as well as the court reports, reasoning that they had been explicitly incorporated into the court’s previous orders and findings. The reports showed efforts the caseworker made, such as visiting all involved parties, providing transportation for Child, inspecting foster parents’ and Mother’s living situations, communicating with therapists, gauging Mother’s progress, promptly communicating with Mother, and ensuring Child had proper educational, medical, and mental health care.
¶14 The State then made its opening statement, pointing out that the only two issues for trial were grounds for termination and reasonable efforts, and arguing that grounds had already been established through the juvenile court’s previous adjudication that this court affirmed. Regarding reasonable efforts, the State argued that, throughout the entire proceeding, the juvenile court had periodically and continuously found that DCFS had made reasonable efforts toward reunification. The State also asserted that, at the end of the reunification period, Mother had stipulated—as part of the November 2020 stipulation prior to the permanency hearing—that DCFS had made reasonable efforts. The State asserted that it had sufficiently proven its case regarding grounds and reasonable efforts through the judicially noticed documents, and it rested its case without calling any witnesses.
¶15 After the State rested, Mother made a “motion for judgment as a matter of law,” arguing that the court’s previous orders “cannot as a matter of law be relied upon for a finding of reasonable efforts in the context . . . of a termination of parental rights trial” and that these orders were only “interim orders” and “can be revisited.” Mother also suggested that she never actually stipulated to a finding of reasonable efforts, even though the court’s order—to which she had not objected—stated otherwise. The court took Mother’s motion under advisement, and did not ever make an explicit ruling on it, but implicitly denied it by eventually making a ruling on the merits in the State’s favor.
¶16 Mother then proceeded with her case-in-chief, in which she called the caseworker and her therapist in addition to presenting her own sworn testimony. The caseworker testified about the events described above, outlining the actions she took to facilitate reunification and discussing her disagreements with Mother. Mother’s therapist testified about her sessions with Mother and the progress Mother made through therapy. Mother testified about the events, described above, that caused her to believe that DCFS was not making reasonable efforts toward reunification.
¶17 At the conclusion of trial, the court took the matter under advisement. About three months later, the court issued an oral ruling,[1] concluding that there were grounds to terminate Mother’s parental rights, and that the State had demonstrated that DCFS had indeed made reasonable efforts to facilitate reunification. After announcing its ruling, the court instructed the State to prepare an order reflecting the court’s ruling. The State did so, and circulated the proposed order to Mother; within her time to object, Mother filed an objection taking issue with one small part of the order, but did not make any objection to the order’s treatment of the proper evidentiary standard.
¶18 Eventually, the court signed a version of the written order prepared by the State, finding “by clear and convincing evidence” that grounds for termination existed because “Child was previously adjudicated to be abused and neglected” in an order that had been affirmed on appeal.
¶19 The court also found—based on “the review hearings, court reports, and other evidence”—that DCFS had provided reasonable efforts toward reunification, although the court did not specify which standard of proof (e.g., clear and convincing evidence or preponderance of the evidence) it was applying with regard to this determination. Among other things, the court found that DCFS had taken action to (i) ensure that Child’s medical, dental, and mental health needs were met, (ii) visit Child at placements, (iii) supervise visits, (iv) review education records, (v) transport Child, (vi) communicate with Child’s therapist, (vii) “coordinate[] virtual parent-time,” (viii) communicate with Mother, and (ix) answer questions and arrange visits. The court also noted that it had, throughout the pendency of the case, “consistently found reasonable efforts on the part of DCFS” in its previous orders and findings. However, the court did not treat these orders and findings as dispositive, and went on to examine the rebuttal evidence offered by Mother, directly addressing her two main arguments: “personal friction between the Mother and [the caseworker], and the delay in starting family therapy with all of the children.” Regarding the friction, the court noted that “DCFS cases are almost always high stress situations and there are bound to be disagreements between DCFS and the parent whose rights are at risk.” And in this case, the court determined that “[t]he disagreements here were based on the DCFS caseworker’s frustration/stress at the lack of progress made by [Mother], which in some sense suggests the DCFS caseworker’s desire for [Mother] to progress and move forward toward reunification.” Regarding the delay in family therapy, the court noted that “DCFS regularly reported that they were following up with the therapist and that the strategy taken by the therapist was determined by the therapist, not DCFS,” and concluded that, “while there may not have been perfection in the case, . . . DCFS has acted reasonably in their efforts.”
¶20 Accordingly, the court entered an order terminating Mother’s rights as to Child.
ISSUES AND STANDARDS OF REVIEW
¶21 Mother now appeals from the court’s termination order, but her appeal is narrowly targeted. As noted, Mother did not contest best interest at trial, after stipulating that termination of her parental rights to Child would be in Child’s best interest. And here on appeal, Mother does not contest the court’s determination that grounds for termination existed. She does, however, challenge—in three different ways—the court’s determination that DCFS made reasonable efforts toward reunification.
¶22 Her first challenge concerns the evidentiary standard the juvenile court applied in making its reasonable efforts determination. She contends that the court should have, but did not, apply a “clear and convincing evidence” standard in making its reasonable efforts determination. “The applicable burden of proof for termination proceedings is a question of law we review for correctness.” In re G.D., 2021 UT 19, ¶ 36, 491 P.3d 867.
¶23 Next, she challenges the merits of the court’s reasonable efforts determination, and this challenge has two parts. First, she contends that the court erred in denying her motion, made at the conclusion of the State’s case-in-chief, for “judgment as a matter of law.” In a bench trial, a motion for judgment as a matter of law’s “procedural counterpart,” Grossen v. DeWitt, 1999 UT App 167, ¶ 8, 982 P.2d 581, is a motion for involuntary dismissal, In re J.A., 2018 UT App 29, ¶ 26, 424 P.3d 913, cert. denied, 420 P.3d 704 (Utah 2018). Such a motion “should be granted when the trial judge finds that the claimant has failed to make out a prima facie case or when the trial judge is not persuaded by the evidence presented.” Accesslex Inst. v. Philpot, 2023 UT App 21, ¶ 33 (quotation simplified). “Whether a party has established a prima facie case is a question of law which we review for correctness.” In re M.L., 965 P.2d 551, 558 (Utah Ct. App. 1998).
¶24 Next, Mother challenges the court’s ultimate finding that DCFS made reasonable efforts toward reunification. “A court’s determination that DCFS made reasonable efforts to provide reunification services involves an application of statutory law to the facts that presents a mixed question of fact and law, requiring review of the juvenile court’s factual findings for clear error and its conclusions of law for correctness, affording the court some discretion in applying the law to the facts.” In re N.K., 2020 UT App 26, ¶ 15, 461 P.3d 1116 (quotation simplified). “Because reasonableness determinations are fact-intensive, we afford the juvenile court broad discretion in determining whether reasonable reunification efforts were made.” In re S.T., 2022 UT App 130, ¶ 17, 521 P.3d 887 (quotation simplified). “Absent a demonstration that the [reasonable efforts] determination was clearly in error, we will not disturb the determination.” In re K.F., 2009 UT 4, ¶ 52, 201 P.3d 985 (quotation simplified). “A finding of fact is clearly erroneous only when, in light of the evidence supporting the finding, it is against the clear weight of the evidence.” In re A.W., 2018 UT App 217, ¶ 23, 437 P.3d 640 (quotation simplified).
ANALYSIS
¶25 We first address Mother’s contention that the juvenile court applied an incorrect evidentiary standard in making its reasonable efforts determination. After that, we address Mother’s challenges to the merits of the court’s determination. For the reasons that follow, we are unpersuaded by Mother’s arguments.
I. Evidentiary Standard
¶26 Mother’s first assertion is that the juvenile court needed to make its reasonable efforts determination by clear and convincing evidence—rather than by the lower preponderance of the evidence standard—and that it did not do so. The first part of Mother’s assertion is correct, but the second part is unsupported by the record in this case.
¶27 With regard to what the proper legal standard is, Mother’s position is correct: the juvenile court needed to apply the clear and convincing evidence standard in making its reasonable efforts determination. Neither the State nor the guardian ad litem takes issue, in this case, with Mother’s position regarding the proper legal standard. And this position is clearly supported by statutory mandate. In all cases in which reunification services are offered, the reasonable efforts determination is a necessary part of the termination inquiry—it is mandated by the statutes governing termination proceedings, see Utah Code § 80-4-301(3)(a) (stating that, “in any case in which the juvenile court has directed the division to provide reunification services to a parent, the juvenile court must find that the division made reasonable efforts to provide those services before” terminating parental rights)—and all facts in termination cases must be established by clear and convincing evidence, see id. § 80-4-103(2)(a) (commanding juvenile courts, in all termination cases, to “require the petitioner to establish the facts by clear and convincing evidence”); see also In re Castillo, 632 P.2d 855, 857 (Utah 1981) (stating that the presumption of parental rights “should be overcome only by clear and convincing evidence”); Utah R. Juv. P. 41(b) (discussing “[t]he burden of proof in matters brought before the juvenile court,” and stating that “cases involving the permanent deprivation of parental rights must be proved by clear and convincing evidence unless otherwise provided by law”).
¶28 But the other half of Mother’s contention—that the juvenile court applied a different standard to its reasonable efforts inquiry—is simply not borne out by the record. As an initial matter, examination of the court’s order indicates that it was generally applying the clear and convincing evidence standard in this termination case. With regard to its determination about grounds for termination, the court specified that it was using the higher evidentiary standard, stating that it “finds that DCFS has proven, by clear and convincing evidence,” that grounds for termination are present. And later in its order, it specified that it was making its legal conclusions regarding termination “by clear and convincing evidence.” Significantly, nowhere in its order did the court reference, even obliquely, any other evidentiary standard. Moreover, earlier in the case, in the court’s September 2019 order approving the service plan, the court had indicated its awareness of the correct evidentiary standard, finding at that point, “by clear and convincing evidence,” that fulfillment of the service plan would “constitute reasonable efforts on the part of [DCFS] to finalize the permanency goals.”
¶29 Mother points out, however, that—while the court, in its final order, specified that its grounds determination and its legal conclusions were being made by clear and convincing evidence— the court did not specifically indicate that it was making its reasonable efforts determination by clear and convincing evidence. As noted, it did not indicate the application of a different evidentiary standard; rather, the reasonable efforts section of the court’s final order was simply silent regarding which evidentiary standard was being applied. As Mother sees it, any uncertainty about which standard the court was applying should be held against the court; in particular, she asks us to infer from this uncertainty that the court was applying an evidentiary standard to that section of its analysis that was different from what it specifically applied to the other sections.
¶30 But this is not the way such inferences work. Uncertainty in the record “is not a basis for reversal.” State v. Hummel, 2017 UT 19, ¶ 82, 393 P.3d 314. Indeed, “[u]ncertainty counts against the appellant, who bears the burden of proof on appeal, and must overcome a presumption of regularity as to the record and decision in the trial court.” Id. “Thus, a lack of certainty in the record does not lead to a reversal and new trial; it leads to an affirmance on the ground that the appellant cannot carry [the] burden of proof.” Id.
¶31 We encountered a similar situation in Gerwe v. Gerwe, 2018
UT App 75, 424 P.3d 1113. In that case, a district court determined, after an evidentiary hearing, that a man had fraudulently induced his ex-wife into signing a postnuptial agreement. Id. ¶ 3. But in so doing, the court was silent regarding which evidentiary standard it was applying; it “did not expressly state that [the ex-wife] presented clear and convincing evidence of fraudulent inducement,” but “it never suggested that a lower standard of proof applied.” Id. ¶ 13. On that record, we rejected the appellant’s assertion of error, stating that a “reviewing court will not presume from a silent record that the court applied an incorrect legal standard but must presume the regularity and validity of the district court’s proceedings, and that it applied the correct legal standard, in the absence of evidence to the contrary.” Id. (quotation simplified). We concluded our analysis by stating that “[b]ecause nothing in the record suggests that the court applied something less than the clear and convincing standard, [the appellant] cannot establish error.” Id. (quotation simplified).
¶32 So too here. Mother offers no evidence—aside from the uncertainty engendered by silence—that the juvenile court applied an evidentiary standard other than clear and convincing to its reasonable efforts determination. And as in Gerwe, this is not enough to satisfy Mother’s appellate burden, especially where the court—in two other places in the order—indicated that it was applying the clear and convincing standard.[2] On this basis, we reject Mother’s contention that the juvenile court applied an incorrect evidentiary standard.
II. Reasonable Efforts
¶33 Next, Mother challenges the merits of the juvenile court’s reasonable efforts determination, and this challenge has two parts. First, Mother asserts that the court erred in failing to grant the motion she made at the conclusion of the State’s case-in-chief. Second, she asserts that the court’s ultimate reasonable efforts determination was against the clear weight of the evidence. We address, and reject, each of these arguments, in turn.
A
¶34 At the end of the State’s witness-less case-in-chief, Mother made an oral motion for “judgment as a matter of law.” The court took the motion under advisement, but never issued an express ruling on it; the court implicitly denied the motion when it ruled in the State’s favor on the merits of the reasonable efforts question. Mother challenges the court’s implicit denial of that motion.
¶35 Although Mother referred to her motion as either a motion for summary judgment or a motion for judgment as a matter of law, in bench trials the proper reference is a motion for involuntary dismissal. See In re Trujillo, 2001 UT 38, ¶ 21 n.13, 24 P.3d 972 (stating that “a motion for a directed verdict contemplates only jury trials,” and “[i]n the context of a bench trial, the directed verdict’s procedural counterpart is a motion for involuntary dismissal”); accord Accesslex Inst. v. Philpot, 2023 UT App 21, ¶ 33. As already noted, the relevant question raised by such a motion—at least where the nonmovant bears the burden of proof on the issue at hand—is whether the nonmovant has, during its case-in-chief, made at least a prima facie case in support of its claim. See Accesslex Inst., 2023 UT App 21, ¶ 33 (stating that, where “the party making [the motion] is the party that does not bear the burden of proof,” the motion “should be granted when the trial judge finds that the claimant has failed to make out a prima facie case” (quotation simplified)). “A prima facie case has been made when evidence has been received at trial that, in the absence of contrary evidence, would entitle the party having the burden of proof to judgment as a matter of law.” In re J.A., 2018 UT App 29, ¶ 27, 424 P.3d 913 (quotation simplified), cert. denied, 420 P.3d 704 (Utah 2018). Thus, we must consider whether the State—the nonmovant who bore the burden of proof—made out at least a prima facie case in support of its reasonable efforts claim during its case-in-chief.
¶36 Our supreme court has defined “reasonable efforts” as a “fair and serious attempt to reunify a parent with a child prior to seeking to terminate parental rights.” In re K.F., 2009 UT 4, ¶ 51, 201 P.3d 985 (quotation simplified). Thus, in order to make a prima facie showing with regard to reasonable efforts, the State had to produce evidence that would—at least before consideration of any contrary evidence—show that DCFS had made a fair and serious effort to reunify Mother with Child during the reunification period. As noted, the State called no witnesses in its case-in-chief, choosing instead to rely entirely on documentary evidence that included the juvenile court’s previous interim orders and the court reports incorporated into those orders. But despite this unorthodox approach,[3] in our view the State did enough—on the facts of this particular case—to make at least a prima facie showing in support of its reasonable efforts claim.
¶37 The State’s evidence, such as it was, included the juvenile court’s interim orders, and those orders indicated that the court, in its ongoing supervisory role over the proceedings during the reunification period, had made multiple and repeated findings that DCFS had engaged in reasonable efforts to further the permanency goals, the primary one of which was reunification. The court never made a contrary finding, despite Mother having registered some dissatisfaction on this point at various stages of the case. Moreover, those interim orders incorporated the court reports, which included detailed accounts of the measures DCFS took to fulfill the requirements of the service plan, including visiting Child, providing transportation for Child, inspecting foster parents’ and Mother’s living situations, communicating with the therapists, gauging Mother’s progress on the service plan, communicating with Mother, and ensuring Child had proper educational, medical, and mental health care. Finally, at the end of the reunification period in November 2020, with a permanency hearing looming, Mother apparently stipulated that “DCFS or other agency/ies continue to make reasonable efforts to assist the family finalize the service plan and its permanency goals.” The use of the word “continue” in the stipulation could reasonably be taken to mean that Mother was acknowledging that, throughout the entirety of the reunification period up until the date of the stipulation, DCFS had made reasonable efforts to accomplish the permanency goals, including reunification. Thus, in this particular case, the State’s evidentiary presentation, despite its truncated and unorthodox nature, was sufficient to indicate— at least in the absence of Mother’s contrary evidence, which had yet to be presented—that DCFS had made a fair and serious effort to reunify Mother with Child.
¶38 We recognize that Mother was eventually able to point to at least some contrary evidence. For instance, Mother put on evidence about the ongoing friction between herself and the DCFS caseworker, and about the issues that came up regarding initiation of family therapy. In addition, Mother had some colorable arguments to make about the November 2020 stipulation, asserting that the parties’ actual agreement had not in fact included any stipulation about reasonable efforts and that, if any such stipulation had been reached, its scope was limited. But at the time the court was considering Mother’s motion for involuntary dismissal—at the close of the State’s case-in-chief— none of that evidence had been presented. And in assessing whether the State had made out a prima facie case regarding reasonable efforts, the court was not supposed to consider whatever contrary evidence Mother might eventually produce. The prima facie case inquiry is simply whether the State produced sufficient evidence, standing on its own and without considering any rebuttal, to support its claim. And on the facts of this unique case, we conclude that it did.
¶39 For these reasons, we discern no error in the juvenile court’s implicit denial of Mother’s motion for involuntary dismissal made at the conclusion of the State’s case-in-chief.
B
¶40 Finally, Mother challenges the juvenile court’s ultimate determination, made as factfinder after trial, that DCFS had made reasonable efforts to facilitate reunification. As noted already, we review this determination deferentially, giving “broad discretion” to the juvenile court “in determining whether reasonable reunification efforts were made.” See In re K.F., 2009 UT 4, ¶ 52, 201 P.3d 985; see also In re A.C., 2004 UT App 255, ¶ 12, 97 P.3d 706 (stating that a juvenile court “is in the best position to evaluate the credibility and competence of those who testify regarding the services that were provided” and to assess the reasonable efforts question). See generally supra ¶ 24.
¶41 Here, the juvenile court listened to the testimony of Mother, the caseworker, and Mother’s therapist, and examined the dozens of exhibits submitted by the parties. This same court had previously been involved in all of the interim review hearings during the reunification period, during which the court assessed DCFS’s reasonable efforts throughout the case. In issuing its ultimate determination, the court took its previous orders into account, but correctly did not treat them as completely dispositive of the question; instead, it considered those orders as potentially persuasive evidence supporting the State’s position, but evaluated that evidence in the context of the rebuttal evidence Mother offered.[4]
¶42 Indeed, the court directly addressed both of Mother’s specific arguments: that the “personal friction” between Mother and the caseworker indicated that the caseworker did not make reasonable efforts, and that the caseworker caused delay in the start of family therapy. With regard to the friction, the court rather astutely noted that child welfare cases “are almost always high stress situations and there are bound to be disagreements between DCFS and the parent whose rights are at risk.” But the court, after reviewing the friction in the context of the entire case, concluded that the disagreements between Mother and the caseworker, while regrettable, did not rise to the level of indicating that the caseworker had failed to provide reasonable efforts. On this record, we cannot say that such a determination is “against the clear weight of the evidence.” See In re A.W., 2018 UT App 217, ¶ 23, 437 P.3d 640.
¶43 With regard to the delay in family therapy, the court noted that, under the service plan, family therapy was not to begin until both Mother’s and Child’s therapists recommended it, and the court was aware that responsibility for scheduling the therapy sessions, once both therapists were on board, was to be up to the therapists themselves. The court, after reviewing this issue in context, concluded that most of the blame for any delay in family therapy should not be laid at the feet of the caseworker, observing that “DCFS cannot, nor should they be required to hold the hand of every party involved to ensure that those parties are also making some efforts,” and ultimately determined that, “while there may not have been perfection in the case, . . . DCFS has acted reasonably in their efforts.” On this record, we cannot say that this determination is against the clear weight of the evidence either.
¶44 Accordingly, we discern no abuse of the juvenile court’s discretion in its ultimate determination, made as factfinder after trial, that DCFS provided reasonable efforts toward reunification.
CONCLUSION
¶45 Mother has not carried her appellate burden of demonstrating that the juvenile court applied an incorrect evidentiary standard to its reasonable efforts determination. And we reject Mother’s challenges to the merits of the court’s ultimate determination that DCFS provided reasonable efforts toward reunifying Mother with Child during the reunification period.
[1] A transcript of the court’s oral ruling was not included in the record submitted to us.
[2] Moreover, Mother had an opportunity to bring this issue to the court’s attention prior to entry of the order. Recall that the court issued an oral ruling, which was then memorialized by the State into a written order and circulated to Mother for her input. Mother filed a limited, targeted objection to one point in the draft order, but—notably—did not raise any objection to the court’s discussion of the evidentiary standard it was applying to its determinations. Any lack of clarity about the standard being applied could easily have been remedied at that stage. See Jensen v. Skypark Landowners Ass’n, 2013 UT App 48, ¶ 6 n.4, 299 P.3d 609 (per curiam) (stating that a party who made “no objection to the form of the order” could not complain, for the first time on appeal, that the order was “vague and ambiguous”), cert. denied, 308 P.3d 536 (Utah 2013); cf. In re K.F., 2009 UT 4, ¶ 63, 201 P.3d 985 (stating that “[j]udicial economy would be disserved” by permitting an appellant to bring, “for the first time on appeal,” a challenge regarding the adequacy of the court’s findings, because such errors are “easy for a trial judge to correct” and are “best corrected when the judge’s findings are fresh in the judge’s mind,” and because “the only likely remedy is merely a remand to the trial court for more detailed findings”).
[3] It would not have been difficult for the State to call at least one critical live witness—the DCFS caseworker—in support of its reasonable efforts claim. The caseworker was available that day to testify, and indeed did testify when she was called to do so by Mother. We do not go very far out onto the proverbial limb by stating that, in most cases, it would be preferable (and, indeed, advisable) for the State, in reasonable efforts cases, to do more than simply rely on previous interim court orders, and we hope that our decision to affirm the juvenile court in this case does not encourage the State to present similarly truncated cases-in-chief in future reasonable efforts cases.
[4] Considering such orders, as well as Mother’s failure to formally object to them, as potentially persuasive but nondispositive evidence appears consistent with previous decisions by this court in reasonable efforts cases. See In re A.W., 2018 UT App 217, ¶ 31, 437 P.3d 640 (“Father also ignores the several times in the record in which the juvenile court made an unchallenged periodic finding—before its termination order—that DCFS had made reasonable efforts to provide him with reunification services.”); see also In re S.T., 2022 UT App 130, ¶ 21, 521 P.3d 887 (noting that, “[a]t no point did Mother object to the court’s findings or indicate that she needed additional or different services.”); In re A.C., 2004 UT App 255, ¶ 17, 97 P.3d 706 (“It is the parent’s responsibility to demand services if they are not offered prior to the termination hearing.” (quotation simplified)).
STATE OF UTAH, IN THE INTEREST OF K.K., S.K., AND S.K.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
B.K.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20220051-CA
Filed February 9, 2023
Second District Juvenile Court, Farmington Department
The Honorable Sharon S. Sipes
No. 1176751
Scott L. Wiggins, Attorney for Appellant
Sean D. Reyes, John M. Peterson, and Candace
Roach, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGE GREGORY K. ORME concurred. JUDGE RYAN M.
HARRIS concurred, with opinion.
CHRISTIANSEN FORSTER, Judge:
¶1 This is a companion case to and arises out of the same facts involved in In re K.K., 2023 UT App 13, which also issues today. In short,[1] B.K. (Mother) and D.K. (Father) are the parents of triplets K.K., S.K., and S.K. (collectively, the Children). When the Children were six years old, the State filed a petition for custody and guardianship on the grounds that the Children were neglected and abused by Mother and Father. The underlying facts giving rise to the petition were multiple acts of domestic violence, culminating in a physical and boisterous verbal altercation between the couple that occurred on June 22, 2021, and that took place in front of the Children and other witnesses.
¶2 Following an adjudication trial on the petition, during which the juvenile court heard testimony from Mother, Father, two neighbors who had witnessed the June 22 altercation, and two police officers who had responded to the neighbors’ 911 calls regarding the June 22 altercation, the court issued an order adjudicating the Children neglected and abused as to Mother.
¶3 In the adjudication order, the court found, among other things, that Mother and Father had engaged in numerous acts of domestic violence, some of which had occurred in the presence of the Children, including on June 22; that when Mother and Father fight they sometimes send the Children downstairs to wait with a roommate, which had occurred two or three times that year; that the Children are aware they are sent downstairs because Mother and Father fight; that “[a]ccording to the [C]hildren, [Father] and [Mother] fight and yell and hurt each other’s bodies”; and that “[t]he [C]hildren have experienced domestic violence with enough frequency that they appear calm during incidents between their parents . . . even though the parents ‘fight a lot and hurt’ each other.”
¶4 As to Mother, the court found she was not yelling back at Father during the June 22 altercation but that she did yell at him on another occasion during which officers were dispatched to the house on a “domestic” call. In addition, the court found that Mother “is not concerned” that the Children witness her and Father fight and that her “demeanor and testimony”—including her inability to recall much of what happened on June 22—“is in tune with her desire to protect [Father] rather than address the domestic violence that exists in her home.” Based on these findings, the court concluded that Mother “has failed to protect the [C]hildren from exposure to domestic violence in the home” and that “[Father] and [Mother’s] domestic violence in their home has harmed the[] [C]hildren.”
ISSUES AND STANDARDS OF REVIEW
¶5 Mother now appeals the juvenile court’s neglect and abuse adjudications, asserting the court erred in determining that she neglected and abused the Children. We review the juvenile court’s factual findings deferentially, reversing the court’s findings only if they are clearly erroneous. In re E.R., 2021 UT 36, ¶ 15, 496 P.3d 58. A finding is clearly erroneous when the court either “failed to consider all of the facts or reached a decision against the clear weight of the evidence.” Id. ¶ 32 (quotation simplified). And we review the juvenile court’s underlying legal determinations nondeferentially for correctness. See In re A.B., 2022 UT 39, ¶¶ 27–28.
ANALYSIS
¶6 Mother argues the juvenile court erred in determining that the State had proved by clear and convincing evidence that she neglected and abused the Children “by exposing them to domestic violence.” Clear and convincing evidence is an “intermediate standard of proof” that “implies something more than the usual requirement of a preponderance . . . of the evidence; and something less than proof beyond a reasonable doubt.” Essential Botanical Farms, LC v. Kay, 2011 UT 71, ¶¶ 21, 24, 270 P.3d 430 (quotation simplified). “For a matter to be clear and convincing to a particular mind it must at least have reached the point where there remains no serious or substantial doubt as to the correctness of the conclusion.” In re S.Y.T., 2011 UT App 407, ¶ 42, 267 P.3d 930 (quotation simplified).
¶7 Because neglect and abuse are distinct, with different statutory definitions, we address Mother’s challenge to the juvenile court’s adjudications separately. With regard to Mother’s neglect adjudication, we conclude the court did not err in determining that she neglected the Children. As to the court’s abuse adjudication, we conclude that Mother, like Father, cannot show prejudice resulting from the abuse adjudication where the underlying facts giving rise to both adjudications are the same. Accordingly, we decline to address the merits of Mother’s challenge to the abuse adjudication.
I. Neglect
¶8 To prove that Mother neglected the Children, the State needed to present clear and convincing evidence that Mother’s “action[s] or inaction[s]” caused the Children to experience a “lack of proper parental care . . . by reason of the fault or habits of” Mother or that Mother “fail[ed] or refus[ed] . . . to provide proper . . . care necessary for [the Children’s] health, safety, morals, or well-being.” See Utah Code § 80-1-102(58)(a)(ii)–(iii). Mother argues the juvenile court’s conclusion that she neglected the Children by “‘allowing’ them to be exposed to her abuse at Father’s hands” does not satisfy the statutory definition of neglect. She further contends that the court “engaged in unwarranted assumptions that are contrary to the well-settled notions underlying the Battered Woman Syndrome” by concluding that Mother’s “behavior constituted ‘nonaccidental’ conduct or that her behavior was due to her ‘faults or habits.’” We disagree.
¶9 The evidence presented at trial included testimony from six witnesses who detailed Father and Mother’s history of engaging in domestic disputes with each other and specifically described the altercation that occurred on June 22. The testimony indicated that two of the children were present during the June 22 altercation and were observed “clinging” to Mother outside in the front yard while Father argued with her, punched her, and threw objects at her. One of the officers who responded to the June 22 altercation testified that the two children who had witnessed the altercation “seemed calm” and were not “distraught or flustered at all.”[2] The officers acknowledged they had been called to Mother and Father’s house prior to the June 22 altercation on a “domestic” call after neighbors reported Mother and Father were screaming at each other.
¶10 Mother also testified that on many occasions she tried to prevent the Children from observing her and Father fight. To accomplish this, “as soon as any argument started” she would send the Children downstairs with her roommate, where they would wait until the fight was over. Despite making this effort, Mother testified that she believed the Children were aware they were sent downstairs to avoid hearing any fighting. Moreover, the evidence also showed that Mother repeatedly allowed Father to return home after the court issued a criminal no contact/protective order and that she minimized the severity of the domestic violence. Mother was also largely unwilling to testify at trial about the June 22 altercation, claiming that she had “trouble remembering” much of what happened. Based on this evidence, the juvenile court found, “[Mother] is not concerned that the [C]hildren are subjected to the argument[s] between [Mother] and [Father]. [Mother’s] demeanor and testimony is in tune with her desire to protect [Father] rather than address the domestic violence that exists in her home.”
¶11 As described above, in its adjudication order, the juvenile court made several findings in support of its determination of neglect as to Mother. Those findings address Mother’s ongoing relationship with Father and the violent dynamic of their relationship, Mother’s knowledge that the Children were aware of her fights with Father despite her attempts to shield them from the violence, and Mother’s apparent lack of concern or desire to extricate herself from future interactions with Father. Under Utah law, a parent “ha[s] a statutory duty not to knowingly place [their] child in harm’s way.” In re C.B., 1999 UT App 293, ¶ 9, 989 P.2d 76. By voluntarily returning to the abusive relationship with Father, Mother ignored this duty by “potentially subjecting the [Children] to witness, or be the victim of, further abuse.” See id. Moreover, as discussed in In re C.C.W., 2019 UT App 34, 440 P.3d 749, a parent’s act of domestic violence can have adverse impacts on a child, even if there is no evidence of violence toward the child and even if the child does not directly witness the violence. Relying on “both common sense and expert opinion,” this court recognized that children who are exposed to domestic violence may suffer “direct physical and psychological injuries,” regardless of whether they are physically harmed. Id. ¶¶ 20–21 (quotation simplified). Among other things, children who observe domestic violence “may be taught that violence is an acceptable way to handle issues with loved ones,” which “breeds a culture of violence in future generations. . . . Abused children are at great risk of becoming abusive parents.” Id. ¶ 20 (quotation simplified). Although it is unfortunate that Mother is a victim of domestic violence, her decision to knowingly return to Father and to protect him rather than to protect the Children despite her knowledge that the Children are aware of the abuse in the home satisfies the statutory definition of neglect.
¶12 We recognize that most, if not all, of the domestic violence at issue in this case was committed by Father against Mother and that Mother was therefore often the victim rather than the perpetrator. But under Utah’s statutory definition of neglect, under certain circumstances, even victims of domestic violence can “neglect” their children if they fail to take sufficient steps to protect them from the domestic violence present in the home or if they choose to prioritize their relationship with the perpetrator of the violence over the need to protect their children. After all, neglect can stem from either “action or inaction” on the part of a parent, see Utah Code § 80-1-102(58)(a), as long as the “inaction” in question causes either “lack of proper parental care of a child by reason of the fault or habits of the parent” or “failure or refusal of a parent . . . to provide . . . care necessary for the child’s health, safety, morals, or well-being,” see id. § 80-1-102(58)(a)(ii)–(iii). Here, the juvenile court found that Mother was “not concerned” about protecting the Children from domestic violence and that Mother had a “desire to protect [Father] rather than address the domestic violence that exists in her home.” These findings were supported by substantial evidence presented at trial. And these facts, as found by the court, constitute “neglect” as our legislature has defined that term. In short, Mother’s “inaction” in failing to protect the Children from exposure to domestic violence and prioritizing her toxic relationship with Father resulted in a failure to provide the “care necessary for [the Children’s] health, safety, morals, or well-being” and caused the Children to experience a “lack of proper parental care.” See id.
¶13 Mother resists this conclusion by contending the juvenile court improperly relied on In re C.C.W. for “the proposition that children are harmed by domestic violence in the home.” She asserts the court’s reliance on In re C.C.W. was unwarranted because that case concerned a proceeding to terminate parental rights whereas this case concerns abuse and neglect adjudications. While Mother is correct that the two proceedings are different, those differences do not bear on whether the court could properly rely on the research and studies cited in In re C.C.W. supporting the general proposition that domestic violence is harmful to children. See 2019 UT App 34, ¶ 20. Termination proceedings and abuse and neglect adjudications are both governed by the Utah Juvenile Code, see Utah Code § 80-4-301 (termination of parental rights); id. § 80-3-201 (abuse or neglect proceedings), and the statutory definitions of “neglect,” “abuse,” “harm,” and “threatened harm” are the same in both proceedings, see id. § 801-102(1), (37), (58)(a), (92) (providing definitions applicable to provisions of Title 80, Utah Juvenile Code). Accordingly, it does not follow that the court may properly consider the effect of domestic violence in finding neglect in one proceeding but not the other.
¶14 In addition, Mother asserts that the juvenile court “rel[ied] on the unfounded presumption that Mother’s decision to maintain a relationship with Father constituted a conscious failure to protect the Children from exposure to domestic violence.” In so doing, Mother posits that the juvenile court ignored the directive offered in In re C.C.W. cautioning courts “to avoid unnecessarily drawing negative inferences from a battered spouse’s decision to maintain a relationship with the batterer, or from a battered spouse’s decision to decline to immediately seek help.” See 2019 UT App 34, ¶ 19 n.4. But that is not what happened here.
¶15 In this case, the juvenile court analyzed the evidence before it in adjudicating Mother for neglect. Thus, the court’s conclusion was not based on an unfounded presumption. As previously discussed, the evidence the court considered included testimony that Father had engaged in multiple acts of domestic violence in the presence of the Children. And based on Father’s multi-year track record of assaulting Mother, even after services were provided to him, the court could reasonably conclude that Father is likely to continue perpetrating acts of domestic violence against Mother in the future and that the Children will continue to be exposed to the violence if Mother fails to take action. In short, the court’s determination that Mother failed to provide the proper care for the Children’s health, safety, morals, or well-being by failing to protect them and prioritizing her relationship with Father was based on the evidence presented at trial and not on an unwarranted presumption.
¶16 Finally, Mother misconstrues the directive offered in In re C.C.W. cautioning courts to “avoid unnecessarily drawing negative inferences from a battered spouse’s decision to maintain a relationship with the batterer.” See id. Mother contends that by adjudicating her for neglect, the juvenile court made an “automatic determination that both the batterer and victim are responsible as a unit,” which in turn results in the victim being blamed for the domestic violence. While we are sympathetic to Mother and acknowledge that extricating oneself from an abusive relationship can often prove difficult, see In re L.M., 2019 UT App 174, ¶ 9, 453 P.3d 651 (per curiam); In re C.C., 2017 UT App 134, ¶¶ 46–48, 402 P.3d 17 (Christiansen, J., concurring), we cannot say that a parent’s status as a domestic violence victim excuses the parent’s duty to protect the children or provides the parent with license to elevate the relationship with the abuser over the safety of the children. Indeed, the directive offered in In re C.C.W. merely cautions courts to “avoid unnecessarily drawing negative inferences” about a victim’s decision to stay in an abusive relationship. 2019 UT App 34, ¶ 19 n.4. It does not prevent the court from considering domestic violence issues in their entirety, nor does it provide absolution for a parent who continues to expose a child to domestic violence. To find otherwise would be contrary to precedent. See, e.g., In re L.M., 2019 UT App 174, ¶ 8 (“A parent who maintains a relationship with an abusive partner jeopardizes a child’s safety.”); In re T.M., 2006 UT App 435, ¶ 20, 147 P.3d 529 (collecting cases and observing that “Utah case law indicates that courts have minimal empathy for parents whose strong emotional ties to their spouses or significant others jeopardize their children’s safety”).
¶17 Accordingly, we affirm the court’s neglect adjudication.
II. Abuse
¶18 The juvenile court determined that Mother both neglected and abused the Children by failing to protect them from exposure to domestic violence and that Father and Mother’s “domestic violence in their home has harmed the[] [C]hildren.” Mother argues the court’s abuse adjudication was in error because the State failed to produce clear and convincing evidence of abuse as it is statutorily defined. See Utah Code § 80-1-102(1)(a)(i)(A)–(B), (37)(a)–(b) (defining abuse as including “nonaccidental harm of a child” and “threatened harm of a child” and defining harm as “physical or developmental injury or damage” and “emotional damage that results in a serious impairment in the child’s growth, development, behavior, or psychological functioning”). Mother raises a fair point that other than applying the general principles set forth in In re C.C.W. to infer harm, the State did not present specific evidence that the Children had sustained harm, and the court made no specific findings—other than that the Children appeared calm during incidents of domestic violence between their parents—that the Children were developmentally harmed or suffered the sort of emotional damage that constituted serious impairment to their growth, development, behavior, or psychological functioning.[3]
¶19 But even if we were to agree with Mother that the juvenile court erred in adjudicating the Children as abused as to Mother, Mother cannot show she was prejudiced by any such error. See In re N.M., 2018 UT App 141, ¶ 27, 427 P.3d 1239 (“An error is prejudicial only if a review of the record persuades the appellate court that without the error there was a reasonable likelihood of a more favorable result for the appellant.” (quotation simplified)); In re. J.B., 2002 UT App 268, ¶¶ 8–12, 53 P.3d 968 (affirming the termination of a father’s parental rights despite the juvenile court’s reliance on improper findings because such reliance did not result in “prejudicial error”). Mother claims that being labeled an abuser “negatively affect[s] her ability—going forward—to perform the primary caretaking responsibilities to [the] Children.” But Mother does not demonstrate how the court’s abuse adjudication will affect her more severely or more negatively as this case proceeds than the neglect adjudication will. See In re G.B., 2022 UT App 98, ¶ 34, 516 P.3d 781 (declining to reach the merits of a challenge to an abuse adjudication where the parent did not challenge a neglect adjudication based on the same facts because the parent did not demonstrate that the abuse adjudication carried “some collateral consequences . . . that [did] not follow from a neglect determination”). Indeed, post-adjudication dispositions turn on the factual circumstances that bring a family into court rather than on the category of adjudication and are implemented based on concern for the child’s health and safety and remedying the underlying issues resulting in the adjudication. See Utah Code § 80-3-405. Here, as found by the juvenile court, whether her inaction is labeled as abuse or neglect, Mother failed to protect the Children from exposure to domestic violence and prioritized her relationship with Father over the well-being of the Children. The services that will be offered to Mother and the Children to remedy these circumstances are not likely to differ based on whether the adjudication is for neglect or abuse. We agree with the guardian ad litem’s assertion that “any or all three categories of adjudication (abuse, neglect, dependency) trigger the same dispositional provisions.” Accordingly, because Mother has not demonstrated how the court’s abuse adjudication will affect her any differently than the neglect adjudication, she cannot show prejudice.[4] See In re K.K., 2023 UT App 13, ¶ 28 (concluding, based on the same facts as the current case, that Father could not show prejudice stemming from the court’s abuse adjudication because the abuse adjudication was based on the same underlying facts supporting the neglect adjudication).
CONCLUSION
¶20 We are cognizant that Mother is a victim of domestic violence, not a perpetrator. Nevertheless, the primary purpose of the State’s petition alleging neglect was to protect the Children, not to punish Mother. Based on the foregoing, we conclude the evidence presented by the State was sufficient to support the juvenile court’s neglect adjudication as to Mother. And even if the juvenile court erred in its abuse adjudication, Mother has not persuaded us that she was prejudiced by any such error because she has not shown how she will be negatively affected by the abuse adjudication over and above the effect of her neglect adjudication. Accordingly, we affirm.
_____________
HARRIS, Judge (concurring):
¶21 I concur fully in the majority opinion. I write separately to offer a word of caution to juvenile courts when it comes to finding that a parent who is a victim of domestic violence has “abused” or “neglected” his or her children by allowing them to be exposed to domestic violence in the home. In my view, Utah’s statutory definitions of the terms “abuse” and “neglect” are broad enough to make it possible, in certain situations, for courts to determine that a domestic violence victim has committed abuse or neglect. But courts should exercise caution in doing so, and should make these rather striking findings only in appropriate cases.
¶22 With regard to neglect, we hold today that the juvenile court’s determination was appropriate in this case, because Mother’s “inaction” in failing to protect the Children from the domestic violence occurring in the home constituted a lack of proper parental care, as well as a failure to provide care necessary for the Children’s health, safety, or well-being. See supra ¶¶ 8–16; see also Utah Code Ann. § 80-1-102(58)(a)(ii)–(iii) (LexisNexis Supp. 2022). In my view, the key to affirming this determination, in this case, was the court’s finding that Mother had prioritized her relationship with her abuser over the safety and well-being of the Children. Evidence presented at trial indicated that Mother repeatedly allowed Father to return to the home despite the existence of protective orders making it unlawful for him to be there, and that she was less than fully cooperative with DCFS and law enforcement officials who were investigating the situation. This sort of evidence, to my way of thinking, is critical to any determination that a domestic violence victim has neglected his or her children. Absent evidence like this, domestic violence victims will likely not have committed actions or inactions significant enough to constitute “neglect” of their children.
¶23 And given the differing statutory definitions, it is even more difficult for domestic violence victims to be considered to have “abused” their children than it is for them to be considered to have “neglected” their children. The statutory definition of “abuse” is (justifiably) narrower than the statutory definition of “neglect.” In order to find that abuse has occurred, a court in most cases (that is, in cases not involving sexual exploitation, sexual abuse, human trafficking, or the child’s death) must find either (a) “nonaccidental harm of a child” or (b) “threatened harm of a child.” See id. § 80-1-102(1)(a)(i)(A), (B); see also In re K.T., 2017 UT 44, ¶ 9, 424 P.3d 91 (“To find abuse under Utah law, a court must find harm.”).
¶24 A finding that a child has sustained nonaccidental harm involves a backward-looking determination, one that must be supported by evidence that the child has already been harmed. And the kind of harm at issue—according to strict statutory definition—must be either “physical or developmental injury or damage” or the sort of “emotional damage that results in a serious impairment in the child’s growth, development, behavior, or psychological functioning.” See id. § 80-1-102(37)(a), (b). I can envision a court, in many cases, being able to make a finding of physical harm without the necessity of expert testimony, but in my view a finding of already-sustained “developmental injury or damage” or emotional damage severe enough to cause “a serious impairment in the child’s growth, development, behavior, or psychological functioning” will often require expert testimony. I think this will nearly always be the case where the question presented is whether a child has already sustained non-physical “harm” as a result of a victim parent failing to protect the child from violence in the home.
¶25 A finding that a child has sustained “threatened harm” is— by contrast—more of a forward-looking inquiry, under the applicable statutory definition. As our legislature has defined it in this context, “threatened harm means actions, inactions, or credible verbal threats, indicating that the child is at an unreasonable risk of harm or neglect.” See Utah Code Ann. § 80-1102(92) (emphasis added). A child can sustain “threatened harm” even if the child has not yet sustained actual “harm.” Pursuant to statutory definition, a child sustains “threatened harm” when, through the “actions” or “inactions” of a parent, the child is placed at “unreasonable risk” of future “developmental injury or damage” or “emotional damage” severe enough to seriously impair the “child’s growth, development, behavior, or psychological functioning.” See id. § 80-1-102(37)(a)–(b), 102(92). In cases involving parents who are victims of domestic violence, a juvenile court could perhaps more easily make a finding of “threatened harm” than already-sustained past harm. Indeed, we have already recognized that “domestic violence can have adverse impacts on a child, even if that child is not the direct object of such violence, and even if the child does not directly witness the violence.” See In re C.C.W., 2019 UT App 34, ¶ 20, 440 P.3d 749. A parent victim’s failure to adequately protect a child from violence in the home could—if the violence was frequent and severe enough, and likely to continue in the future—lead to a supported finding that the parent, through inaction, has placed the child at an unreasonable risk of future developmental damage. It may even be possible, in appropriate cases, for such a finding to be made without expert testimony.
¶26 But in order to reach “abuse” through “threatened harm” in cases involving victims of domestic violence, a court must make specific and supported findings regarding each of the elements of the statutory definition. First, a court must specify that it is finding “abuse” by way of “threatened harm” (as opposed to through a finding of already-sustained “nonaccidental harm”). Second, the court must make a detailed finding of threatened harm on the facts of the case at hand, including specific identification of the “action or inaction” taken by the parent that leads to the “unreasonable risk” of future harm, as well as a satisfactory explanation of why the risk of future harm is “unreasonable.” Third, the court must specify the type of future harm it believes the child is at risk of sustaining, whether it be developmental injury or severe emotional damage, and should explain—with reference to specific evidence in the record—why the court believes the child is likely to sustain that particular type of harm.
¶27 In short, Utah’s statutory definitions of “neglect” and “abuse” are broad enough to allow courts, in appropriate cases, to find that a parent who is the victim of domestic violence has committed neglect or abuse by failing to protect his or her child from domestic violence in the home. But courts should exercise caution in so doing, and should reserve such findings for those cases in which the domestic violence is severe and sustained and in which the victim parent has taken specific actions or inactions aimed at prioritizing his or her relationship with the abuser over care and protection of the children.
¶28 In this case, I concur in the majority’s view that the court made appropriate findings of neglect with regard to Mother. I also concur in the majority’s decision not to reach the merits of the propriety of the court’s findings regarding abuse as to Mother, but I register serious reservations about the adequacy and sufficiency of those findings, and urge courts to exercise caution in making neglect and abuse determinations in situations like this one.
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[1] A more fulsome description of the relevant facts and procedural history can be found in In re K.K., 2023 UT App 13, the case in which we adjudicated Father’s appeal. In this case, we adjudicate Mother’s appeal.
[2] The juvenile court did not take this evidence to mean that the Children had not been adversely affected by their parents’ inappropriate behavior. Rather, the inference drawn by the court was that the parental conflict had been so pervasive that the Children had become somewhat numb to it.
[3] We do not intend to suggest the State could never demonstrate that a parent who is the victim of domestic violence has “abused” his or her children, as that term is statutorily defined. We agree with the general sentiments expressed in the concurring opinion that such a path is possible but is more difficult than demonstrating “neglect” and would require specific evidence and findings. See infra ¶¶ 22–27.
[4] In fact, a review of the underlying docket in Mother’s case reveals that Mother and the Children have done so well in their treatment and services that the juvenile court released the Children from DCFS’s protective supervision and terminated the court’s jurisdiction last fall.
STATE OF UTAH, IN THE INTEREST OF K.K., S.K., AND S.K.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
D.K.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20220050-CA
Filed February 9, 2023
Second District Juvenile Court, Farmington Department
The Honorable Sharon S. Sipes
No. 1176751
Freyja Johnson, Emily Adams, and Hannah K.
Leavitt-Howell, Attorneys for Appellant
Sean D. Reyes, John M. Peterson, and Candace
Roach, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES GREGORY K. ORME and RYAN M. HARRIS
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 D.K. (Father) and B.K. (Mother) are the parents of triplets K.K., S.K., and S.K. (collectively, the Children). When the Children were six years old, the State filed a child welfare petition for custody and guardianship on the grounds that the Children were neglected and abused by Father and Mother. Following an adjudication hearing on the petition, the juvenile court issued an order adjudicating the Children as neglected and abused.
¶2 Father now appeals the juvenile court’s abuse adjudication, arguing that the State failed to prove by clear and convincing evidence that he abused the Children. We affirm.
BACKGROUND
¶3 In 2019, when the Children were four years old, the State filed a petition seeking protective supervision services based on allegations that Father and Mother had engaged in repeated acts of domestic violence in front of the Children. Thereafter, Father and Mother agreed to engage in services voluntarily, and the State eventually dismissed its petition.
¶4 Two years later, however, Father and Mother again engaged in a series of domestic violence incidents that involved law enforcement. In May 2021, Father called the police and told them that Mother had “beat him up.” When officers arrived on scene and talked to Father, he told them he and Mother were “fighting about money” and that Mother “swung to hit him but never touched him.” On June 10, officers were again dispatched to the family home on a “domestic” call because Father and Mother were “screaming at each other with the [C]hildren in the home.” When officers arrived, they could hear the screaming. Father was uncooperative with the officers, but he eventually left the home. However, Father returned to the home later that same night.
¶5 On June 22, Father and Mother were involved in an altercation that led the State to seek custody and guardianship of the Children. During this altercation, Father and Mother were arguing inside the home. Mother was sitting on the couch, and Father sat on top of her demanding that she give him the keys to the car. Father then “head butted” Mother and told her to get out of the home, which she did. Once Mother was outside, Father followed her and began punching her “with a closed fist on the side of her stomach.” Father proceeded to grab a large rock and chase Mother around the car, “acting like he was going to throw the rock at her.” The Children were outside of the home for the duration of the altercation and witnessed Father chasing Mother and hitting her. Several neighbors also witnessed the altercation and called the police. When officers arrived, Father was arrested and taken to jail.
¶6 After Father’s arrest, Mother completed a lethality assessment, an evaluation given to assess the level of danger an abused person faces, which resulted in a score of high risk. Mother did not seek a protective order for herself or for the Children during the eight days Father was in jail. However, due to the severity of the prior altercation, the district court entered a criminal no contact/protective order on July 1. The order prohibited Father from residing with Mother and the Children.
¶7 On July 8, a caseworker from the Department of Child and Family Services (DCFS) went to the home for an unannounced visit. During the visit, the caseworker found Father outside; Father reported that Mother was inside sleeping. Father allowed the caseworker to interview the Children. During the interview, the Children reported that Father and Mother “fight and yell” and “hurt each other’s bodies.” Father was subsequently arrested for violation of the criminal no contact/protective order. Thereafter, the caseworker attempted to talk to Mother, who had been inside sleeping, but Mother refused to speak with the caseworker.
¶8 Based on the foregoing, the State filed a petition for custody and guardianship of the Children on the grounds that they were neglected and abused based on Father and Mother engaging in domestic violence in the home. Following a shelter hearing, the juvenile court determined the Children should remain in Mother’s custody for the time being but ordered Mother and the Children to have “absolutely no contact” with Father and that Mother “immediately notify law enforcement” if Father appeared at the home.
¶9 Following a series of pretrial hearings, the matter proceeded to an adjudication trial in December 2021. At trial, the State presented the testimony of six witnesses: Mother, Father, two neighbors who had witnessed the June 22 altercation, and two police officers who had responded to the neighbors’ 911 calls regarding the June 22 altercation.
¶10 According to the neighbors, Father and Mother were arguing about car keys. As Father approached Mother, “she put her arms out to stop him . . . and he slapped her hands aside.” Father then began punching Mother “haymaker style” to her side and stomach. The punching continued “for a minute or two,” and Father connected “five to ten” times. After the punching stopped, Father chased Mother around the front yard, “throwing rocks” and “bikes and other toys” in the direction of Mother, although the neighbors did not see any of the objects hit Mother.
¶11 The neighbors testified that during the altercation, two of the Children were in the front yard “standing behind [Mother]” and “clinging” to her. Mother was positioned between Father and the two children, acting as a “buffer” between them. One neighbor opined that he did not “believe any [of Father’s] aggression was towards the children,” and that “at no[] point did [he] think [the two children] were in any sort of danger.” However, the two children were outside the entire time, “seeing everything.”
¶12 In addition, one neighbor testified that she had witnessed Father and Mother “screaming” at each other multiple times in the presence of the Children prior to the June 22 altercation. Moreover, the neighbor had witnessed Father yelling at the Children twice and had observed that the Children “are terrified and trying to do whatever [Father] says to not be in trouble.”
¶13 The responding officers testified next. One officer testified that after arriving at the scene on June 22, he interviewed Mother, who told him that she had been arguing with Father over car keys. During the argument, Father “sat down on her” to keep her from leaving, headbutted her in the forehead, and “punched her in the back of the leg.” After Mother jumped out the window to the front yard, Father followed her and the two continued arguing. Father chased Mother around a vehicle parked in the front yard; once he caught her, he began “punching her in the side underneath her arms with a closed fist.” Mother was able to break away, but Father chased her with a rock in his hands. Mother told the officer the Children were outside with her during the altercation.
¶14 The officer also interviewed Father about the altercation. Father said he was “upset” because Mother hid the car keys from him but that “nothing got physical.” Father told the officer he and Mother had argued and run around the vehicle in the front yard. Father indicated that he had picked up a rock and held it over his head, but he did not throw it, nor did he intend to.
¶15 Lastly, the officer testified regarding his observations of the Children. When the officer arrived at the scene, the Children were inside the house. The officer interviewed Mother while she was standing at the front door. During the interview, the officer saw “at least two” of the Children standing by the front door behind Mother and “one of the kids popped his head outside” and asked for stickers. Officer opined that the Children’s demeanor “seemed calm.” The Children seemed “a little upset that some toys were . . . strewn about the front yard,” but otherwise they did not seem “distraught or flustered” by the altercation.
¶16 Mother testified that the June 22 incident started when she refused to give Father the keys to the car. Mother explained that she could not remember all the details about the altercation because she has “trouble remembering things.” However, she did remember that the altercation began when Father headbutted her in the house. After the headbutt, Father and Mother went outside to the front yard. Although Mother did not remember whether Father hit her in the yard, she recalled that he “didn’t follow [her] around the yard,” that he picked up a basket and “threw it up in the air” but not “at” her, and that he “picked up a rock” but did not chase her while holding it. Mother maintained that the Children had not observed the altercation because they were downstairs inside the house with a roommate where they stayed until the officers arrived.
¶17 Mother also testified that the Children “were never present for full on arguments or yelling.” She explained that “as soon as any argument started,” her roommate would take the Children downstairs so they would not be able to hear the fighting. Although Mother did not believe the Children had been impacted by the fighting, she did believe the Children were aware that they were sent downstairs to avoid hearing any fighting.
¶18 Father testified last. When asked about the June 22 altercation he invoked his Fifth Amendment right not to testify because criminal charges were pending against him regarding that incident. But Father explained that “before” he and Mother would engage in any verbal arguments, the Children would go downstairs.
¶19 After considering all the evidence, the juvenile court issued an adjudication order. In the order the court found, among other things, that Father and Mother had engaged in numerous acts of domestic violence, some of which had occurred in the presence of the Children, including the one on June 22; that when Father and Mother fight they sometimes send the Children downstairs to wait with a roommate, which had occurred two or three times that year; that the Children are aware that they are sent downstairs because Father and Mother fight; that “[a]ccording to the [C]hildren, [Father] and [Mother] fight and yell and hurt each other’s bodies”; and that “[t]he [C]hildren have experienced domestic violence with enough frequency that they appear calm during incidents between their parents . . . even though the parents ‘fight a lot and hurt’ each other.”
¶20 As to Father, the court drew a number of adverse inferences based on his decision to invoke his constitutional right to silence when asked specific questions about the June 22 altercation. And as to Mother, the court found that she “is not concerned” about the Children witnessing her and Father fighting and that her “demeanor and testimony”—including her inability to recall much of what happened on June 22—“is in tune with her desire to protect [Father] rather than address the domestic violence that exists in her home.” Based on these findings, the court concluded that Father “failed to provide proper care necessary for the health, safety, morals and well-being of the children in that he has engaged in domestic violence with [Mother], and [both Father and Mother] failed to protect the [C]hildren from exposure to domestic violence in the home.” The court also concluded that “[Father] and [Mother’s] domestic violence in their home has harmed [the Children]” and, accordingly, adjudicated the Children as neglected and abused as to Father.
ISSUE AND STANDARD OF REVIEW
¶21 Father now appeals only the juvenile court’s abuse adjudication, arguing that the court’s ruling was in error because the State failed to prove by clear and convincing evidence that he had harmed or threatened harm to the Children. “We apply differing standards of review to findings of fact, conclusions of law, and determinations of mixed questions of law and fact.” In re E.R., 2021 UT 36, ¶ 14, 496 P.3d 58. We review the juvenile court’s factual findings deferentially, reversing the court’s findings only if they are clearly erroneous. Id. ¶ 15. A finding is clearly erroneous when the court either “failed to consider all of the facts or reached a decision against the clear weight of the evidence.” Id. ¶ 32 (quotation simplified). However, the question of whether the juvenile court properly applied the governing law to the facts of the case presents “a law-like mixed question subject to nondeferential review.” In re A.B., 2022 UT 39, ¶ 27.
ANALYSIS
¶22 At an adjudication trial, the juvenile court must determine whether “the allegations contained in the abuse, neglect, or dependency petition are true” by “clear and convincing evidence.” Utah Code § 80-3-402(1). Clear and convincing evidence is an “intermediate standard of proof” that “implies something more than the usual requirement of a preponderance . . . of the evidence; and something less than proof beyond a reasonable doubt.” Essential Botanical Farms, LC v. Kay, 2011 UT 71, ¶¶ 21, 24, 270 P.3d 430 (quotation simplified). Put differently, this standard requires “the existence of facts that make a conclusion very highly probable.” Id. ¶ 24 (quotation simplified).
¶23 As relevant here, “abuse” is defined as the “nonaccidental harm of a child” or the “threatened harm of a child.” Utah Code § 80-1-102(1)(a)(i)(A), (B). Thus, “[t]o find abuse under Utah law, a court must find harm.” In re K.T., 2017 UT 44, ¶ 9, 424 P.3d 91. “Harm” includes “physical or developmental injury or damage” and “emotional damage that results in a serious impairment in the child’s growth, development, behavior, or psychological functioning.” Utah Code § 80-1-102(37)(a), (b). And “[t]hreatened harm” is defined as “actions, inactions, or credible verbal threats, indicating that the child is at an unreasonable risk of harm or neglect.” Id. § 80-1-102(92).
¶24 As applied to this case, to satisfy the clear and convincing standard, the State “needed to present evidence that would allow the [juvenile] court to conclude that it was very highly probable that the [C]hildren had been harmed.” See In re K.T., 2017 UT 44, ¶ 9 n.3 (quotation simplified). In reaching this conclusion the court may properly “infer harm” based on the evidence presented. Id. ¶ 14. However, the court may not “speculate” about the existence of harm absent clear and convincing evidence demonstrating the actions actually resulted in harm. Id. ¶¶ 14–17.
¶25 After considering the evidence presented during the adjudication trial, the juvenile court concluded the Children were abused because “[Father] and [Mother’s] domestic violence in their home has harmed [the Children].” Father argues the court’s conclusion was in error because the State failed to produce clear and convincing evidence that he physically harmed the Children or that the Children were developmentally harmed or emotionally damaged by observing Father assault Mother and Father and Mother argue. But even if we were to agree with Father that the State failed to present sufficient evidence that Father harmed the Children and were to agree that the juvenile court erred in adjudicating Father as abusing the Children, Father has not demonstrated that he was prejudiced by the alleged error. See In re N.M., 2018 UT App 141, ¶ 27, 427 P.3d 1239 (“An error is prejudicial only if a review of the record persuades the appellate court that without the error there was a reasonable likelihood of a more favorable result for the appellant.” (quotation simplified)); In re. J.B., 2002 UT App 268, ¶¶ 8–12, 53 P.3d 968 (affirming the termination of a father’s parental rights despite the juvenile court’s reliance on improper findings because such reliance did not result in “prejudicial error”). As noted above, the court adjudicated the Children as both neglected and abused, and Father appeals only the court’s abuse adjudication. Although Father is correct that “[a]buse and neglect are statutorily defined and given ‘distinct statuses’” and that “[u]nder the statutory definitions . . . abuse requires a higher level of improper conduct from a parent than neglect,” that distinction has no bearing in this case—and Father has not shown that it is likely to have any bearing in the future—because the court’s adjudications of neglect and abuse were based on the same underlying incidents of domestic violence.
¶26 When a juvenile court adjudicates a child as either neglected or abused, that determination brings the child within the jurisdiction of the court and allows the court to enter dispositional orders. See Utah Code § 80-3-402. The dispositions available to the court do not hinge on whether the child was adjudicated as neglected or abused. Instead, dispositions are tied to the factual findings about what is going on in the case and are implemented based on concern for the child’s health and safety and remedying the underlying issues resulting in the adjudication. See id. § 80-3-405.
¶27 Here, the juvenile court’s disposition is governed by the need to address Father’s commission of domestic violence in the presence of the Children and the risk such behavior will continue. Services to address this behavior will not differ whether the underlying adjudication is labeled as neglect or abuse because the court’s neglect determination was based on the same underlying facts as the abuse determination: here, Father’s failure to protect and to provide proper care for the Children as a result of his engaging in acts of domestic violence.[1]
¶28 Father cites this court’s decision in In re C.M.R., 2020 UT App 114, 473 P.3d 184, for the proposition that Father was harmed by the court’s abuse adjudication, asserting that the findings of abuse in the adjudication order “will form the basis for whether [Father] is able to comply with the requirements of [any service plan] going forward and whether [Father] can be reunited with the Children.” See id. ¶ 28. But unlike the mother in In re C.M.R., who was potentially prejudiced by entering admissions to allegations regarding a specific additional incident of abuse at the adjudication hearing, Father’s abuse adjudication was based on the exact same underlying set of facts as his neglect adjudication. In this case, Father has not challenged the juvenile court’s neglect adjudication, nor has he challenged the court’s underlying factual findings—which support both the neglect and the abuse adjudications—that he assaulted Mother in the presence of the Children and repeatedly engaged in heated verbal arguments with her. Those underlying actions, which form the foundation for both adjudications, are the reason why he “can only have supervised visitation with [the] Children” and why “[h]e is not allowed in the home,” and not because the court adjudicated the Children as abused in addition to neglected. Because Father has not challenged the neglect adjudication or demonstrated how the ramifications flowing from this unchallenged adjudication would be less severe than those resulting from an abuse adjudication, he has not demonstrated that he has sustained any prejudice as a result of the court’s abuse adjudication.[2] See In re G.B., 2022 UT App 98, ¶ 34, 516 P.3d 781 (declining to reach the merits of a challenge to an abuse adjudication where the parent did not challenge a neglect adjudication based on the same facts because the parent did not demonstrate that the abuse adjudication carried “some collateral consequences . . . that [did] not follow from a neglect determination”).
CONCLUSION
¶29 On appeal, Father does not challenge the juvenile court’s findings that he committed domestic violence in the presence of the Children or that those actions resulted in him neglecting the Children by failing to provide them proper care and to protect them from exposure to domestic violence. Under these circumstances, even if the juvenile court erred in its separate abuse adjudication—a conclusion we stop short of reaching—Father has not demonstrated he was prejudiced by any such error because he has not challenged the court’s neglect adjudication or the facts underlying it, which are the same facts underlying the court’s abuse adjudication, and any court-ordered disposition will be based upon Father’s own acts and not the adjudication of abuse.
¶30 Affirmed.
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[1] In his reply brief Father argues he was harmed by the juvenile court’s abuse adjudication because “an abuse adjudication goes into a central abuse registry system managed by DCFS” and “the information in that registry is used for licensing purposes and prevents individuals who have been adjudicated of abuse from holding licenses in certain professions.” But this argument misses the mark. While Father correctly notes that the abuse registry system—called the Management Information System (the MIS)— can be accessed by the State for all future cases involving Father, see Utah Code § 80-2-1001, he conflates the MIS with a “sub-part” of the MIS called the Licensing Information System (the LIS), see id. § 80-2-1002(1)(a)(i). Information on the MIS includes facts relevant to each child welfare case, whereas the LIS is maintained for “licensing purposes.” See id. § 80-2-1002(1)(a)(i). Although an individual on the LIS may be prohibited from, among other things, holding licenses in certain professions, see id. § 80-2-708(2)(a)(v), inclusion on the LIS is not automatic in every child welfare case. Rather, the LIS identifies only individuals found to have committed a “severe type of child abuse or neglect.” See id. § 80-2-708(1). Because the court did not adjudicate Father as severely abusing the Children, inclusion on the LIS does not automatically follow, and Father has not asserted that he has been—or is likely to be—included therein. Accordingly, Father has not demonstrated that, in this case, he has sustained any prejudice as a result of the juvenile court’s abuse determination.
[2] Indeed, in the juvenile court’s dispositional order, entered approximately two months after the adjudication order, Father’s primary responsibility is to “complete a domestic violence/mental health assessment . . . and follow any and all of the recommendations made.”
Is there any question whether the court would benefit from hearing testimony from these kids? Even if, arguendo, the court were to discover these kids are liars?
A.H., J.H., J.H., L.H., N.H., S.H., AND E.H., PERSONS UNDER EIGHTEEN YEARS OF AGE.
N.J.H. AND S.H., Appellants, v. STATE OF UTAH, Appellee.
Opinion
Nos. 20210353-CA and
20210354-CA
Filed October 6, 2022
Fourth District Juvenile Court, Provo Department
The Honorable Suchada P. Bazzelle No. 1145453
Alexandra Mareschal, Attorney for Appellant N.J.H.
Kirstin H. Norman, Attorney for Appellant S.H.
Sean D. Reyes, Carol L.C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
JUDGE RYA N M. HARRIS authored this Opinion, in which
JUDGE DAVID N. MORTENSEN and SENIOR JUDGE KATE APPLEBY concurred.[1]
HARRIS, Judge:
¶1 After a bench trial, the juvenile court terminated S.H.’s (Mother) and N.J.H.’s (Father) (collectively, Parents) parental rights regarding the two youngest of their seven children: A.H. and L.H. (the Subject Children). The court did not terminate Parents’ rights regarding their other five children; it accepted the parties’ stipulation that the best interest of those children would be served by placing them in a guardianship with relatives. But despite those same relatives being willing to take and care for (by either adoption or guardianship) the Subject Children as well, the court determined that the Subject Children’s best interest would be served by termination of Parents’ rights and adoption by their foster parents. In separate appeals that we consider together in this opinion, Parents challenge that decision, asserting that termination of their rights was neither strictly necessary nor in the best interest of the Subject Children. We agree and reverse.
BACKGROUND
¶2 Mother and Father are the parents of seven children (the Children), each born approximately two years apart. The eldest (E.H.) was born in 2005, and the two youngest (A.H. and L.H.) were born in February 2015 and December 2016, respectively. Mother is the biological parent of all seven of the Children. Father is the biological parent of the six youngest Children and the legal parent of all of them; he adopted E.H. when E.H. was an infant. Mother and Father met in New Mexico, which is where the parents of E.H.’s biological father (Grandparents) live.[2] Parents moved to Utah, with the Children then born, in 2007.
¶3 Over the years, Grandparents developed a close relationship not only with E.H.—their biological grandson—but with the other Children as well. They made trips to Utah on at least an annual basis during which they spent time with the Children, and they engaged in regular telephonic contact as well. After L.H. was born in 2016, he required a lengthy stay in the newborn intensive care unit, and Grandmother took three weeks off from her job as a nurse to come to Utah and help.
¶4 In June 2017, the Division of Child and Family Services (DCFS) filed a petition for protective supervision, asserting that Father had physically abused N.H., one of the older sons, and that L.H.—who was then just a few months old—was malnourished and failing to thrive. DCFS’s plan, at that point, was to leave the Children in the home and provide supportive services. After adjudicating N.H. abused as to Father and the other Children neglected as to Father, the juvenile court granted DCFS’s requested relief and ordered that Father have only supervised contact with the Children. For the time being, the Children remained in the home under Mother’s care.
¶5 In August 2017, however, DCFS filed a petition seeking custody of the Children, citing not only the issues raised in its previous petition but also a more recent incident involving Mother and L.H. In response to a report of reckless driving, police found Mother slumped over the steering wheel of her parked car with L.H. in the backseat, and a search of the vehicle turned up several prescription medications in a container not intended for prescriptions, as well as a red straw with “white powder” inside it. Police arrested Mother on suspicion of, among other things, impaired driving; she was later able to provide prescriptions for all the medications found in the car.
¶6 After a hearing, the court granted DCFS’s requested relief and placed the Children in the temporary custody of DCFS. The Children were removed from Mother’s care later that same day and, when caseworkers went to the home to effectuate the court’s order, they observed Mother “wobbling back and forth” and having “a hard time keeping her eyes open.” Initially, DCFS caseworkers—with Mother’s agreement—arranged a safety plan in which Mother would leave the home and the Children would stay there, in their familiar environment, cared for by Mother’s brother. But Mother knowingly failed to follow that plan, and returned to the home without permission two days later. As a result of Mother’s actions, DCFS removed the Children from the home and placed them in a group home for children.
¶7 But that placement was temporary, and DCFS eventually needed to move the Children to foster care placements. But because no available foster care placement could accommodate all seven Children, DCFS found it necessary to split the Children up into three different placements. The oldest two were placed in one foster home, the next three in a second, and the Subject Children in a third. Three months later, the oldest two were placed with a paternal aunt. For almost a year, the seven Children were separated into these three groups, and the different groups saw each other only during Parents’ supervised parent-time; they were sometimes permitted to call each other, but DCFS did not facilitate any in-person sibling visitation during this period.
¶8 At later hearings, the juvenile court adjudicated the children neglected as to Mother. The court noted L.H.’s “failure to thrive” and the incident involving the parked car, as well as Mother’s criminal history—which involved both drug crimes and retail theft—and her “history of mental health issues that [could] place the [C]hildren at risk of harm.” Despite these concerns, however, the goal remained reunification and, over the ensuing months, Parents complied with the court’s direction well enough that, by July 2018, the family was able to reunify in the home. For the next nine months, the family was together—for the most part[3]—and doing reasonably well, and DCFS anticipated that it might be able to close the case in the spring of 2019. But three events occurred in early 2019 that prompted DCFS to reconsider.
¶9 First, in March 2019, Father injured two of the older Children, and DCFS made a supported finding of physical abuse by Father. In the wake of this incident, and in an effort to avoid a second removal of the Children from the home, Father agreed to move out and to have only supervised visits with the Children. When caseworkers visited the home following Father’s departure, they became concerned about Mother’s ability to care for the Children on her own; in particular, caseworkers observed several incidents in which Mother left the younger Children unattended.
¶10 Second, in late April 2019, police were called to the home at 1:54 a.m. and found L.H., then just two years old, alone in the family car, which was parked in front of the house. Mother explained that she had been out shopping, gotten home late, and then taken a phone call while L.H. was still out in the car asleep.
¶11 Third, in early May 2019, Mother had an encounter with police while in her car at a fast-food restaurant. Officers observed Mother responding quietly and slowly to questions, and they discovered in the car a plastic bag and an unlabeled prescription bottle containing pills later identified as controlled substances. In addition, officers found a razor blade with white residue and a rolled-up dollar bill in the vehicle, evidence that suggested Mother had been misusing the drugs. Mother passed a field sobriety test, and officers later determined that she had valid prescriptions for the pills.
¶12 Following these incidents, DCFS filed a new petition, again seeking to remove the Children from the home and place them in state custody. The juvenile court again adjudicated the Children abused and neglected as to each Parent, and again placed them into the custody of DCFS. The Children were extremely emotional when they learned of the court’s order removing them from the home for a second time; in fact, officials even had to use physical force to restrain two of the older sons when the time came to take them into custody. This time, the seven Children were sent to four placements: one of the older sons was placed in a short-term behavioral health facility because of his aggressive behavior during the removal; two of the older sons were placed together; and the two next-oldest sons and the Subject Children were returned to their respective previous foster placements. Just a few weeks later, six of the Children—all but the oldest—were placed together with a single foster family in a different county, but this short reunion lasted only about two months.
¶13 In August 2019, with the school year approaching, Parents requested that the Children be returned to Utah County, a request that again required the Children to be split up. This time, the two oldest were placed together; the next three were placed together in a new placement; and the Subject Children were—for the first time—placed with the family (the Foster Family) who now wishes to adopt them.[4] The Subject Children bonded very quickly with Foster Family, calling the parents “mom and dad” within just a few weeks of being placed with them. Still, the primary goal remained reunification, and the court ordered additional reunification services. However, DCFS still did not facilitate any sibling visitation, but “left that mostly up to [the] foster parents.” Although the foster families initially managed “a few meet-ups on their own,” these efforts diminished over time, despite the absence of any indication that the Children—including the Subject Children—did not want to see each other.
¶14 At a court hearing in July 2019, shortly after the second removal, Mother’s attorney requested that Grandparents—who were and remain willing to take all seven of the Children—be considered as a possible placement. The court was open to this suggestion but, because Grandparents reside in New Mexico, the court ordered DCFS to “initiate an ICPC[5] as to” Grandparents. But DCFS delayed acting upon the court’s order for nearly four months, until late October 2019. DCFS attributed the delay, in part, to inadvertence related to a caseworker switch that was occurring right then, but the new caseworker later testified that her “understanding” of the situation was that DCFS “made a decision not to proceed” with the ICPC process “because reunification services were still being offered.” Owing at least in part to the four-month delay in getting it started, the ICPC report was still not completed by the beginning of the eventual termination trial in October 2020. On the third day of trial, a DCFS witness explained that New Mexico had just finished its end of the process and had given its “approval” the day before, and that DCFS had filled out its final form the night before.
¶15 The ICPC report, when it was finally completed, raised no concerns with regard to Grandparents, and concluded that their home would be an appropriate placement for the Children. Indeed, one of the DCFS caseworkers testified at trial that she had “no concerns directly about [Grandparents] and their ability to be a safe home.” But none of the Children were actually placed with Grandparents until October 2020, due in large part to the delays associated with completion of the ICPC report.
¶16 For several months following the second removal of the Children from the home, the primary permanency goal remained reunification, and DCFS continued to provide reunification services to the family. But in the fall of 2019, after yet another substance use incident involving Mother, DCFS became dissatisfied with Parents’ progress and asked the court to change the primary permanency goal. At a hearing held at the end of October 2019, the court agreed, terminated reunification services, and changed the primary permanency goal to adoption with a concurrent goal of permanent custody and guardianship. A few weeks later, the State filed a petition seeking the termination of Parents’ rights with regard to all seven Children.
¶17 The court originally scheduled the termination trial to occur at the end of February 2020, but the State requested a continuance because it was working on placing the Children with Grandparents, was waiting for the ICPC report, and wanted “to ensure [that] the Grandparents kn[ew] what they [were] getting into.” The court granted the State’s requested continuance and rescheduled the trial for the end of March 2020. On March 12— the day before all “non-essential” court hearings in Utah were postponed by administrative order[6] due to the emerging COVID19 pandemic—all parties filed a stipulated motion asking that the trial be postponed yet again because there was “an ICPC request pending approval” and it was “highly anticipated by all parties that the results of the ICPC [would] resolve all issues pending before the Court.” The court granted the stipulated motion and continued the trial, but did so without date because the termination trial was deemed “to be a non-essential hearing.” Eventually, after the COVID-related administrative order was amended to allow some non-essential hearings to go forward, the court rescheduled the trial for October 2020, to take place via videoconference.
¶18 In the meantime, despite the fact that the ICPC report was not yet completed, the five oldest Children visited Grandparents in New Mexico for several weeks during the summer of 2020. DCFS did not allow the Subject Children to participate in that visit, not based on any concern about Grandparents’ ability to provide appropriate care for them, but because caseworkers believed that such a lengthy visit away from Foster Family would be “scary and upsetting” to the Subject Children.
¶19 During this time, the parties and their attorneys were preparing for trial. From the beginning of the case, Parents had each been provided with a court-appointed lawyer (collectively, Appointed Counsel) to represent them. But toward the end of July 2020, Parents asked a private lawyer (Private Counsel) to represent them at trial.[7] Private Counsel agreed, and Parents paid him a retainer. Parents informed Private Counsel of upcoming pretrial disclosure deadlines, and even gave him a list of fifteen witnesses Parents wanted to call at trial; Private Counsel told them that he would file the appropriate documents and that they did not need to contact their Appointed Counsel. Eventually, Parents discovered that no pretrial disclosures had been made and no motions for extensions of the deadlines had been filed.
¶20 The trial was finally held in October 2020. The first day was spent solely trying to clear up confusion about who was representing Parents. Appointed Counsel appeared for trial, but they indicated that they were unprepared to proceed given the lack of communication from Parents over the weeks leading up to trial. Private Counsel appeared as well, even though he had not filed a notice of appearance, and requested that the trial be continued. The court—not knowing the full picture of what had happened behind the scenes with Parents’ attempts to change counsel—chastised Private Counsel for the “very, very late notice and request” and denied the continuance, expressing concern that eleven months had already passed since the trial had originally been set. The court then recessed for the day to allow the parties to confer and negotiate about possible permanency options short of termination of Parents’ rights.
¶21 Those negotiations bore fruit, at least in part. With Private Counsel assisting Parents, the parties were able to reach a stipulation that it was in the best interest of the oldest five Children to be placed with Grandparents under an order of permanent custody and guardianship. But the parties were unable to reach a similar stipulation with regard to the Subject Children, and therefore the trial went forward as to them. At that point, Private Counsel withdrew from representing Parents, leaving Appointed Counsel to handle the trial even though they had not—given the lack of communication with Parents—made many of the usual preparations for a trial.
¶22 In support of its case, the State presented testimony from four DCFS caseworkers, two therapists, Mother’s former and current probation officers, and the mother from the Foster Family (Foster Mother). Foster Mother testified that the Subject Children had developed a strong bond with Foster Family and “love[d] spending time with [them].” She also stated that the Subject Children refer to her three children as “their brother and sisters,” that “[n]obody is ever left out amongst the kids,” and that L.H. “believes he is part of [their] family” and “has said, on multiple occasions, that he’s already adopted.” The two therapists testified that the Subject Children did indeed have a strong bond with Foster Family; one of them stated that it was “the most secure attachment [she had] ever witnessed . . . between a foster parent and a foster child,” and offered her view that it would be “hugely devastating” for them if they were removed from Foster Family.
¶23 Several of the caseworkers testified about the strength of the bond between the Subject Children and their older siblings, and they painted a picture in which those bonds were originally very strong but had begun to weaken over time as the Subject Children spent less time with their siblings and became more attached to Foster Family. One of the first caseworkers to work with the family testified that the bonds had been strong among all the Children, including the Subject Children. Another testified about how emotional the older children were upon learning that they were to be removed from the home a second time and again separated from most of their siblings. But another caseworker— who had been assigned to the family in 2019—testified that the Subject Children’s bond to their older siblings was weakening as they became more attached to Foster Family. In general, the caseworkers voiced concerns about separating siblings, offering their view that ordinarily “children should stay together” and that placing siblings together “is understood under most circumstances . . . to be beneficial to the kids.”
¶24 Parents were prohibited from introducing many of their witnesses because they had failed to make their required pretrial disclosures. In particular, Parents were prepared to call one of the Subject Children’s former foster parents as well as some of the older Children, who would each have apparently testified that the bonds between the Subject Children and their siblings had been, and still remained, very strong. But the court refused to allow Parents to call these witnesses because they had not been timely disclosed. The court did, however, allow Parents to offer testimony of their own, and to call Grandparents to testify.
¶25 For their part, Parents testified about how closely bonded the Children had been before DCFS became involved. Father testified that the older siblings had expressed a desire to all be together and noted that, if they were placed with Grandparents, the Subject Children would not only be with siblings, but also with cousins, and would have a large network of familial support. Mother testified that she, too, wanted the Children to be kept together and stated that she knew she was “not what [the Children] deserve” “right now,” but offered her view that, at some point in the future, after she has “[gotten] [her]self together,” she “willbe what’s best for them.”
¶26 Grandfather testified that he and Grandmother told DCFS, right from the start, that they were willing to take all seven children. He explained that they were accustomed to large families, having raised eight children of their own; he noted that two of those children lived nearby, meaning that the Children, if they lived with him, would have aunts, uncles, and cousins in the vicinity. Grandfather testified that he and Grandmother had renovated their house to accommodate all seven children and that they were able, financially and otherwise, to take on the responsibility. He acknowledged that raising seven children was not how he had originally envisioned spending his retirement years, but he offered his view that “no matter what else I could be doing in the next ten or twenty years,” what mattered most to him was “that [he] could be doing something to make a difference in the lives of these kids.” Grandmother testified that she had bonded with A.H. during her three-week stay with the family after L.H. was born, and she offered her view that it had been difficult to get Foster Mother to facilitate telephonic or virtual visits between the older siblings and the Subject Children during the older siblings’ summer 2020 visit to New Mexico.
¶27 After trial, the court took the matter under advisement for six months, issuing a written decision in May 2021. In that ruling, the court terminated Parents’ rights as to A.H. and L.H. It found sufficient statutory grounds for termination of Parents’ parental rights, including Father’s physical abuse of some of the older sons, Parents’ neglect of L.H. when he was malnourished and failing to thrive as an infant, and neglect of the Children for failing to protect them from Mother’s substance use. Similarly, the court found that Mother had neglected the Children by failing to properly feed L.H., insufficiently supervising the Subject Children, and improperly using drugs. Moreover, the court found that Mother’s “substance abuse and criminal behavior” rendered her unfit as a parent.
¶28 The court next found that DCFS had made “reasonable efforts towards the permanency goal of reunification.” It noted that DCFS has been involved with the family since April 2017 and, “during the arc of the case, circumstances changed frequently and there were many setbacks in the attempts to reunify the children with the parents.” The court concluded that “reunification efforts were not successful through no fault of DCFS.”
¶29 Finally, as to best interest, the court determined—in keeping with the parties’ stipulation—that, with regard to the oldest five siblings, “a permanent custody and guardianship arrangement” with Grandparents “would serve their best interests as well as, or better than, an adoption would.” But the court saw it differently when it came to the Subject Children, concluding that their best interest would be best served by the facilitation of an adoption by Foster Family, and that termination of Parents’ rights was strictly necessary to advance that interest. The court reached that decision even though it meant permanently separating the Children, and even though the court acknowledged that Grandparents were “certainly appropriate caregivers.” The court offered several reasons for its decision. First, it noted that the Subject Children were very young—A.H. was two-and-a-half years old, and L.H. was eight months old, when they were first removed from the family home—and that, as a result, they “had a very short time to be with their older siblings.” Second, the court concluded that the strength of the bond between the Subject Children and their siblings was not particularly strong, opining that the Subject Children “have little beyond a biological connection” to their siblings. In this vein, the court downplayed any positive effects that might come from keeping the Children together, describing the older siblings as “a large and unruly group” that “cannot be depended upon to protect” the Subject Children. Third, the court discussed the unquestionably strong bond that the Subject Children had formed with Foster Family. Fourth, the court concluded that disruption of the Subject Children’s “placement at this time would be very detrimental” and would “put them at unnecessary risk for future emotional and mental health issues.” Fifth, the court expressed concern that, absent termination, Parents would retain some level of parental rights and might attempt “to regain custody of the [C]hildren in the future,” an eventuality the court believed would “pose a risk to” the Subject Children. And finally, the court emphasized the importance of stability, stating that “the [Subject Children] and [Foster Family] deserve, and indeed need, the highest level of legal protection available, which would be achieved through adoption.” For these reasons, the juvenile court terminated Parents’ rights with regard to the Subject Children.
ISSUE AND STANDARD OF REVIEW
¶30 Parents now appeal the juvenile court’s order terminating their parental rights, but their appeal is narrowly focused. Parents do not challenge the juvenile court’s determination that statutory grounds exist for terminating their parental rights. However, Parents do challenge the court’s determination that termination of their parental rights was strictly necessary and in the best interest of the Subject Children. We review a lower court’s “best interest” determination deferentially, and we will overturn it “only if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” In re E.R., 2021 UT 36, ¶¶ 22, 31, 496 P.3d 58 (quotation simplified). But “such deference is not absolute.” Id. ¶ 32. We do not afford “a high degree of deference” to such determinations; rather, we simply apply “the same level of deference given to all lower court findings of fact and ‘fact-like’ determinations of mixed questions.” Id. ¶¶ 29–30. In addition, our deference must be guided by the relevant evidentiary standard applicable in termination of parental rights cases: the “clear and convincing” evidence standard. SeeIn re G.D., 2021 UT 19, ¶ 73, 491 P.3d 867. “Although we defer to juvenile courts’ [best-interest] determinations, in reviewing their conclusions we do so with an exacting focus on the proper evidentiary standard,” and “we will not only consider whether any relevant facts have been left out but assess whether the juvenile court’s determination that the ‘clear and convincing’ standard had been met goes against the clear weight of the evidence.” Id.[8]
ANALYSIS
¶31 The right of parents to raise their children is one of the most important rights any person enjoys, and that right is among the fundamental rights clearly protected by our federal and state constitutions. SeeTroxel v. Granville, 530 U.S. 57, 65–66 (2000) (stating that “the interest of parents in the care, custody, and control of their children” is “perhaps the oldest of the fundamental liberty interests” the court recognizes); see alsoIn re J.P., 648 P.2d 1364, 1372 (Utah 1982) (“A parent has a fundamental right, protected by the Constitution, to sustain his relationship with his child.” (quotation simplified)). Our legislature has expressed similar sentiments, declaring that “[u]nder both the United States Constitution and the constitution of this state, a parent possesses a fundamental liberty interest in the care, custody, and management of the parent’s child,” see Utah Code Ann. § 80-4-104(1) (LexisNexis Supp. 2022), and that this interest “does not cease to exist simply because . . . a parent may fail to be a model parent,” id. § 80-4-104(4)(a)(i).
¶32 The “termination” of these fundamental “family ties . . . may only be done for compelling reasons.” Seeid. § 80-4-104(1). Under our law, a parent’s rights are subject to termination only if both parts of a two-part test are satisfied. First, a court must find that one or more statutory grounds for termination are present; these include such things as abandonment, abuse, or neglect. See id. § 80-4-301(1). Second, a court must find that termination of the parent’s rights is in the best interest of the children. See In re B.T.B., 2020 UT 60, ¶¶ 19–20, 472 P.3d 827. The party seeking termination of a parent’s rights bears the burden of proof on both parts of this test. SeeIn re G.D., 2021 UT 19, ¶ 43, 491 P.3d 867 (stating that “petitioners in termination proceedings must prove termination is warranted”). And that party must make this required showing “by clear and convincing evidence.” Id.; see alsoSantosky v. Kramer, 455 U.S. 745, 769–70 (1982) (concluding that the U.S. Constitution requires application of a “clear and convincing evidence” standard in parental termination proceedings).
¶33 As noted, Parents do not challenge the juvenile court’s determination that statutory grounds for termination exist in this case. Their challenge is limited to the second part of the test: whether termination of their rights is, under the circumstances presented here, in the best interest of the Subject Children.
¶34 “The best interest of the child has always been a paramount or ‘polar star’ principle in cases involving termination of parental rights,” although it is not “the sole criterion.” In re J.P., 648 P.2d at 1368. The assessment of what is in a child’s best interest is, by definition, “a wide-ranging inquiry that asks a court to weigh the entirety of the circumstances” surrounding a child’s situation, including “the physical, intellectual, social, moral, and educational training and general welfare and happiness of the child.” SeeIn re J.M., 2020 UT App 52, ¶¶ 35, 37, 463 P.3d 66 (quotation simplified). Because children inhabit dynamic environments in which their “needs and circumstances” are “constantly evolving,” “the best-interest inquiry is to be undertaken in a present-tense fashion,” as of the date of the trial or hearing held to decide the question. SeeIn re Z.C.W., 2021 UT App 98, ¶¶ 12–13, 500 P.3d 94 (quotation simplified).
¶35 Our legislature has provided two related pieces of important guidance on the best-interest question. First, it has expressed a strong preference for families to remain together, establishing something akin to a presumption that a child’s best interest will “usually” be served by remaining with the child’s parents:
It is in the best interest and welfare of a child to be raised under the care and supervision of the child’s natural parents. A child’s need for a normal family life in a permanent home, and for positive, nurturing family relationships is usually best met by the child’s natural parents.
Utah Code Ann. § 80-4-104(8). In that same statutory section, our legislature also emphasized that, “[w]herever possible, family life should be strengthened and preserved.” Seeid. § 80-4-104(12). And the “family” includes the child’s parents as well as the child’s siblings; indeed, in the related child custody context, our legislature has specifically identified “the relative benefit of keeping siblings together” as a factor that the court “may consider” when evaluating “the best interest of the child.” Seeid. § 30-3-10(2)(o) (LexisNexis 2019).[9]
¶36 Second, our legislature has mandated that termination of parental rights is permissible only when such termination is “strictly necessary.” Seeid. § 80-4-301(1). Our supreme court has interpreted this statutory requirement to mean that “termination must be strictly necessary to promote the child’s best interest.” SeeIn re B.T.B., 2020 UT 60, ¶ 60. Indeed, a court’s inquiry into the strict necessity of termination should take place as part of the bestinterest inquiry that comprises the second part of the termination test. Seeid. ¶ 76 (stating that, “as part of [the best-interest inquiry], a court must specifically address whether termination is strictly necessary to promote the child’s welfare and best interest”).
¶37 In assessing whether termination is strictly necessary to promote a child’s best interest, courts “shall consider” whether “sufficient efforts were dedicated to reunification” of the family, and whether “the efforts to place the child with kin who have, or are willing to come forward to care for the child, were given due weight.” See Utah Code Ann. § 80-4-104(12)(b). Indeed,
this part of the inquiry also requires courts to explore whether other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights. In some cases, alternatives will be few and unsatisfactory, and termination of the parent’s rights will be the option that is in the child’s best interest. But in other cases, courts should consider whether other less permanent arrangements might serve the child’s needs just as well.
In re B.T.B., 2020 UT 60, ¶ 67 (quotation simplified). Courts that order termination of parental rights without appropriately exploring “feasible alternatives to termination” have not properly applied the second part of the two-part termination test. See, e.g., In re H.F., 2019 UT App 204, ¶ 17, 455 P.3d 1098 (reversing and remanding a juvenile court’s termination order because, among other things, “the court’s determination that termination was strictly necessary was not supported by an appropriate exploration of feasible alternatives to termination”).
¶38 In this case, Parents challenge the juvenile court’s best interest determination, including its subsidiary conclusion that termination of their rights was strictly necessary to promote the best interest of the Subject Children. As discussed herein, we find merit in Parents’ challenge. We recognize that we are reviewing the juvenile court’s determinations deferentially, and we do not lightly reverse a court’s best-interest determination. But the facts of this case simply do not amount to strict necessity, and therefore the best-interest requirement is not met. Stated another way, the evidence presented at trial did not constitute clear and convincing evidence that termination of Parents’ rights to the Subject Children would be in the best interest of those children. Under the specific circumstances of this case, the juvenile court’s determination was against the clear weight of the evidence, and on that basis we reverse.
¶39 In its written decision, the juvenile court set forth several reasons for its conclusion that termination of Parents’ rights was strictly necessary to promote the Subject Children’s best interest.[10] We discuss those reasons, in turn. Although the topics that the juvenile court focused on are certainly appropriate topics to consider when examining best interest, we conclude that the facts underlying those topics—in this case—do not support a determination that termination was strictly necessary to promote the best interest of the Subject Children.
¶40 The court began its best-interest examination by discussing the ages of the Subject Children and, relatedly, the fact that the bonds between the Subject Children and their siblings had deteriorated. The Subject Children are, as noted, the youngest of the seven Children and were very young—A.H. was two-and-ahalf years old, and L.H. was eight months old—when they were first removed from the family home. The juvenile court noted that, as a result, they “did not have the opportunity to live with their parents for as long as their older siblings” and “had a very short time to be with their older siblings.” These facts are unquestionably true, and one of the consequences of these facts is that the Subject Children had less-developed bonds with Parents and with their siblings than the other Children did. But this will almost always be true when children are removed from their homes as newborns or toddlers, and courts must be careful not to overemphasize the significance of the deterioration of familial bonds—particularly sibling bonds—when that deterioration is the result of court-ordered removal from the home at an early age. See, e.g., In re N.M., 186 A.3d 998, 1014 n.30 (Pa. Super. Ct. 2018) (vacating an order terminating parental rights in part because the lower court’s decisions during the case had been “designed to affect the bond between” the parents and the child “so that termination would be the natural outcome of the proceedings”).
¶41 The facts of this case present an interesting case study. The next-oldest of the Children was born in April 2013, and is less than two years older than A.H. He was only four years old at the time of the first removal, and yet the juvenile court determined that it would not be in his best interest for Parents’ rights to be terminated. Many of the differences—especially in terms of the strength of the sibling bonds—between the Subject Children’s situation and that of their barely-older brother are largely the result of decisions made by DCFS and the court during the pendency of these proceedings. In a situation like this, a court must be careful not to ascribe too much weight to circumstances that are of the court’s own making.
¶42 We do not doubt the juvenile court’s finding that, by the time of trial, the bonds between the Subject Children and the other Children were not as strong as the bonds between the five oldest Children. We take at face value the court’s statement that the Subject Children, at the time of trial, had “little beyond a biological connection” to their older siblings. But even the biological connection between siblings matters. The connection between siblings is, for many people, the longest-lasting connection they will have in life. Indeed, “the importance of sibling relationships is well recognized by . . . courts and social science scholars,” because “a sibling relationship can be an independent emotionally supporting factor for children in ways quite distinctive from other relationships, and there are benefits and experiences that a child reaps from a relationship with his or her brother(s) or sister(s) which truly cannot be derived from any other.” In re D.C., 4 A.3d 1004, 1012 (N.J. 2010) (quotation simplified); see also Aaron Edward Brown, He Ain’t Heavy, He’s My Brother: The Need for a Statutory Enabling of Sibling Visitation, 27 B.U. Pub. Int. L.J. 1, 5 (2018) (noting that “[t]oday’s children are more likely to grow up with a sibling than a father,” and that “[t]he sibling relationship is generally regarded to be the longest relationship a person will have because the relationship will typically last longer than a relationship with a parent or spouse”). Such bonds are often especially important “to children who experience chaotic circumstances” like abuse or neglect, because “in such circumstances, they learn very early to depend on and cooperate with each other to cope with their common problems.” In re D.C., 4 A.3d at 1013 (quotation simplified); see alsoIn re Welfare of Child of G.R., No. A17-0995, 2017 WL 5661606, at *5 (Minn. Ct. App. Nov. 27, 2017) (“The sibling relationship is especially important for a young child with an unstable family structure as these siblings can provide secure emotional attachment, nurturing, and solace.”). Indeed, trial testimony from the DCFS caseworkers mirrored these sentiments, with the caseworkers stating that “children should stay together” and that placing siblings together “is understood under most circumstances . . . to be beneficial to the kids.”
¶43 And there is nothing in the record before us that indicates significant trouble among the sibling ranks. To the contrary, by all accounts the Children are quite loyal to one another, as best exemplified by their collective reaction—outrage—to being removed from the family home, and from each other, a second time in 2019. The juvenile court referred to them as a “large and unruly group,” but that description would seem to fit almost any group of seven siblings. The court also appeared concerned about “significant sibling rivalr[ies]” among some of the older Children but, again, we would be surprised to find a seven-member sibling group that didn’t have significant sibling rivalries. The court also offered its view that “[t]he older boys cannot be depended upon to protect” the Subject Children, but we think that’s an unfair expectation, as the court itself noted. And there are no allegations (for example, of intra-sibling abuse) about or among this sibling group that would counsel against keeping the group together.
¶44 We are also troubled, under the unusual circumstances of this case, by the fact that the deterioration of the Subject Children’s bonds with their siblings was due, in not-insignificant part, to the way this case was litigated, even apart from the removal and placement decisions. Notably, DCFS did not take any systematic steps to facilitate visitation between the three (and sometimes four) sibling groups that were placed in different homes, but instead “left that mostly up to [the] foster parents.”[11] In particular, DCFS did not allow the Subject Children to visit Grandparents with the rest of the Children during the summer of 2020. And Grandmother offered her perception that it had been difficult to get Foster Mother to facilitate telephonic or virtual visits between the older siblings and the Subject Children during the older siblings’ summer 2020 visit. Under these circumstances, it is no wonder that the Subject Children’s bond with their siblings began to wane. It is intuitive that relationships can become more distant without meaningful contact. To at least some degree, the deterioration of the sibling bonds is attributable to DCFS’s (and the various foster parents’) actions in failing to facilitate regular sibling visitation.
¶45 In addition, DCFS’s delay in starting the ICPC process appears to have also played a role in the way this case turned out. In July 2019, the juvenile court ordered that “an ICPC” be conducted to explore the possibility of placing the Children with Grandparents in New Mexico. But DCFS—perhaps intentionally, according to one of the caseworkers—delayed acting upon the court’s ICPC order for nearly four months, until late October 2019. Delays in obtaining ICPC reports are not necessarily uncommon, and can be just an unfortunate part of the process of communicating between agencies of different states. But such delays are troubling when they are attributable to a state agency’s refusal to even get the process started, despite a court order requiring it to do so. Although DCFS could not have known it at the time, its failure to timely initiate the ICPC process may have mattered more in this case than in others, because of the eventual emergence, in early 2020, of the COVID-19 pandemic.
¶46 Recall that, in the fall of 2019 and early 2020, after DCFS filed its termination petition, all parties were on the same page: they were working toward placing the Children—all of them— with Grandparents in New Mexico. Indeed, it was “highly anticipated by all parties that the results of the ICPC [would] resolve all issues pending before the Court.” But before a placement with Grandparents could happen, the ICPC report needed to be completed, and the parties twice stipulated to continuances of the termination trial specifically so that the ICPC report could be finished, and so that they could “ensure [that] the Grandparents kn[ew] what they [were] getting into.” These continuances resulted in the trial being rescheduled for late March 2020, which in turn resulted in the trial being postponed again because of the emergence of the pandemic. The ICPC report was not completed until October 2020, and by then, the Subject Children had been with Foster Family for more than a year and had begun to develop meaningful bonds there. Under these circumstances, it is hard not to wonder what might have happened if DCFS had begun the ICPC process in July 2019, as it had been ordered to do.[12]
¶47 Next, the court—appropriately—discussed at some length the Subject Children’s bond with Foster Family. There is no doubt that Foster Family is an appropriate adoptive placement, and that Foster Parents are doing a wonderful job caring for the Subject Children. The court made unchallenged findings in this regard, noting that Foster Parents are the ones “who care for them on a daily basis, feed them, hug them, and put them to bed,” and that, from the Subject Children’s point of view, Foster Parents “are their parents.” We do not minimize the significance of these findings. They are important, and are a necessary condition to any adoption-related termination of parental rights. After all, if an adoptive placement is not working out, an adoption into that placement is very unlikely to be finalized.
¶48 But while the existence of an acceptable adoptive placement is a necessary condition to any adoption-related termination, it is not a sufficient one. At some level, we certainly understand the impulse to want to leave children in—and perhaps make permanent—a putative adoptive placement in which the children are thriving. And we recognize—as the juvenile court observed here—that taking a child out of a loving adoptive placement in order to reunite the child with family can be detrimental to the child, at least in the short term. But in order to terminate parental rights to facilitate an adoption, a court must have before it more than just a loving and functional adoptive placement from which it would be emotionally difficult to remove the child. Termination of parental rights must be “strictly necessary to promote the . . . welfare and best interest” of the children in question. SeeIn re B.T.B., 2020 UT 60, ¶ 76, 472 P.3d 827. And in order to reach that conclusion, a court must do more than make a finding about the acceptability of the adoptive placement—it must examine potential options, short of termination, that might also further the best interest of the children in question. Id. ¶¶ 66–67. In particular, and especially in light of our legislature’s guidance that families should be kept together whenever possible, see Utah Code Ann. § 80-4-104(8), (12), courts must investigate kinship placement possibilities, including options for permanent guardianship. And if one of those placements turns out to be an option that can promote the child’s best interest “just as well,” then it is by definition not “strictly necessary” to terminate the parent’s rights. SeeIn re B.T.B., 2020 UT 60, ¶¶ 66–67.
¶49 Moreover, in this context courts must keep in mind the “clear and convincing” evidentiary standard. SeeIn re G.D., 2021 UT 19, ¶ 44, 491 P.3d 867. If there exists a completely appropriate kinship placement through which the family can remain intact, the “strictly necessary” showing becomes significantly more difficult to make. We stop well short of holding that, where an acceptable kinship placement exists, it can never be strictly necessary to terminate a parent’s rights. But in such cases, the proponent of termination must show, by clear and convincing evidence, that the adoptive placement is materially better for the children than the kinship placement is. After all, if the two placements can each “equally protect[] and benefit[]” the child’s best interest, then by definition there does not exist clear and convincing evidence in favor of terminating a parent’s rights. SeeIn re B.T.B., 2020 UT 60, ¶ 66. And in this case, the necessary showing was not made.
¶50 Perhaps most significantly, there is not a hint of any evidence in the record before us that placement with Grandparents is flawed. The ICPC report (finally) came back clean; that report raised no concerns with regard to Grandparents, and concluded that their home would be an appropriate placement for the Children. The five older siblings had a lengthy visit with Grandparents in the summer of 2020, and all went well. And just before trial, the parties stipulated that the five oldest
Children should be placed with Grandparents on a long-term basis, subject to a permanent custody and guardianship arrangement. The court approved this stipulation, agreeing with the parties “that a permanent custody and guardianship arrangement” would serve the best interest of the five oldest Children. It even found that Grandparents are “certainly appropriate caregivers.” And on appeal, all parties agree that Grandparents are acceptable and loving caregivers; no party has even attempted to take issue with Grandparents’ ability to provide a loving and stable home for the Children. There is no dispute that Grandparents have the capacity and ability, from a financial standpoint as well as otherwise, to care for all seven Children, and stand ready and willing to do so, regardless of whether that takes the form of an adoption or a permanent guardianship arrangement.
¶51 The juvenile court opted to go in a different direction, primarily for three related reasons. First, it emphasized how “detrimental” and “destabilizing” it would be for the Subject Children to be removed from Foster Family. Second, the court emphasized that the Subject Children need stability and permanency, and determined that adoption—as opposed to guardianship—could best provide that stability. Third, the court expressed concern that, absent an adoption, Parents might attempt—at some later point in time—to get back into the lives of the Subject Children, and perhaps even “regain custody,” an eventuality the court believed would “pose a risk to” the Subject Children. In our view, these stated reasons do not constitute clear and convincing reasons to terminate Parents’ rights.
¶52 With regard to permanency and stability, our supreme court has recently clarified that the mere fact that adoptions—as a category—provide more permanency and stability than guardianships do is not enough to satisfy the statutory “strictly necessary” standard. SeeIn re J.A.L., 2022 UT 12, ¶ 24, 506 P.3d 606. In that case, the court held that the lower court fell into legal error in concluding that [a guardianship option] would not provide the “same degree of permanency as an adoption.” That is not the question under our law. A permanent guardianship by definition does not offer the same degree of permanency as an adoption. And there is always some risk that the permanent guardianship could come to an end, or be affected by visitation by the parent. If these categorical concerns were enough, termination and adoption would be strictly necessary across the board. But such categorical analysis is not in line with the statutory standard.
Id. The court then noted that, as part of the “strictly necessary” analysis, a court “must assess whether a permanent guardianship can equally protect and benefit the children in the case before it.” Id. ¶ 25 (quotation simplified). The court made clear that the statutory requirements were “not met by the categorical concern that a permanent guardianship is not as stable or permanent as an adoption,” and instead “require[] analysis of the particularized circumstances of the case before the court.” Id.
¶53 As applied here, this recent guidance renders insufficient—and more or less beside the point—the juvenile court’s apparent belief that an adoption was better than a guardianship simply because it was more permanent and more stable. All adoptions are at least somewhat more permanent than guardianships, and therefore that conclusion, standing alone, is not enough to constitute clear and convincing evidence supporting termination. It is certainly appropriate for courts in termination cases to discuss the potential need for permanency and stability. But in doing so, and when selecting an adoptive option over a guardianship option, a court in a termination case must articulate case-specific reasons why the added layer of permanency that adoptions offer is important and why adoption would better serve the best interest of the children in question than the guardianship option would.
¶54 The court’s concern about the possibility of Parents reentering the Children’s lives is, on this record, not an adequate case-specific reason. As an initial matter, it—like the lack of permanency—is a feature of the entire category of guardianships. It will always be true that, in a guardianship, a parent retains what the juvenile court here referred to as “residual rights,” while in an adoption the parent’s rights are terminated forever. This kind of categorical concern is not enough to constitute clear and convincing evidence in support of termination.
¶55 Moreover, we question whether—in many cases, including this one—a parent’s desire to re-engage in their child’s life should be viewed as negatively as the juvenile court appeared to view it. Here, we return to the statutory guidance offered by our legislature: that “family life should be strengthened and preserved” “[w]herever possible,” and that it is usually “in the best interest and welfare of a child to be raised under the care and supervision of the child’s natural parents.” See Utah Code Ann. § 80-4-104(8), (12). We note our own observation that, “[i]n many cases, children will benefit from having more people—rather than fewer—in their lives who love them and care about them.” SeeIn re B.T.B., 2018 UT App 157, ¶ 55, 436 P.3d 206, aff’d, 2020 UT 60, 472 P.3d 827. And we acknowledge Parents’ point that a parent whose child has been placed in a permanent guardianship arrangement in a child welfare proceeding has no independent right to petition to change or dissolve the guardianship. See Utah Code Ann. § 78A-6-357(3)(d) (LexisNexis Supp. 2022). Only the guardian has that right. See id. And there is no evidence, in this record, that Grandparents will be particularly susceptible to inappropriate pressure from Parents to seek a change in the terms of any guardianship arrangement. In addition, there is no evidence that, if the Subject Children were placed into a guardianship with Grandparents, it would be harmful to them for Parents to retain the possibility of maintaining some form of contact with them (as they have with regard to the other Children), as supervised by court order and by Grandparents acting as guardians.[13] In other words, the juvenile court did not emphasize any case-specific issues that make us especially concerned about the possibility of Parents attempting to re-enter the Children’s lives at some point in the future.
¶56 We are thus left with the court’s concern—shared by the Subject Children’s therapists—about the disruption in the Subject Children’s lives that would be caused by removing them from Foster Family and placing them with Grandparents, alongside their siblings. This is of course a legitimate concern, and one that courts should take into account in situations like this. If and when the Subject Children are ever placed into a guardianship with Grandparents, and taken from Foster Family, that will no doubt be traumatic for them, at least in the short term. We acknowledge the validity of such concerns, and do not intend to minimize them. But in this case, focusing too much on this more-present possibility of emotional trauma risks minimizing the longer-term emotional trauma that permanent severance of the sibling bonds will likely someday trigger. In this specific and unique situation, the juvenile court’s discussion of potential emotional trauma associated with removal from Foster Family does not constitute clear and convincing evidence supporting termination.
¶57 For all of these reasons, we conclude that the juvenile court’s best-interest determination was against the clear weight of the evidence presented at trial. The State failed to prove, by clear and convincing evidence, that termination of Parents’ rights to Subject Children was strictly necessary, especially given the presence of another available and acceptable option—permanent guardianship with Grandparents, alongside their five siblings— that would not require permanent severance of familial bonds and that would serve the Subject Children’s best interest at least as well as adoption. SeeIn re G.D., 2021 UT 19, ¶ 75 (“[W]hen two placement options would equally benefit a child, the strictlynecessary requirement operates as a preference for a placement option that does not necessitate termination over an option that does.”). Under the unique circumstances of this case, termination of Parents’ rights is not strictly necessary to promote the Subject Children’s best interest.
CONCLUSION
¶58 Accordingly, we reverse the juvenile court’s order of termination, and remand the case for further proceedings consistent with this opinion. We offer a reminder that best-interest determinations are to be conducted in present-tense fashion, as of the date of the trial or hearing convened to consider the matter. SeeIn re Z.C.W., 2021 UT App 98, ¶ 14, 500 P.3d 94. Our holding today is that, based on the evidence presented at trial in October
2020, termination of Parents’ rights was not strictly necessary to promote the Subject Children’s best interest. On remand, the juvenile court should re-assess best interest. If nothing has materially changed since October 2020, then we expect the court to enter orders designed to work (perhaps quite gradually, in the court’s discretion) toward integration of the Subject Children into a placement with Grandparents, alongside their siblings. But if there is evidence that matters have materially changed since October 2020, the court may need to consider that evidence in some fashion, seeid. ¶ 15, and re-assess best interest based on the situation at the time of the hearing.
[1]Senior Judge Kate Appleby sat by special assignment as authorized by law. See generally Utah R. Jud. Admin. 11-201(7).
[2] In this opinion, for ease of reference, we refer to E.H.’s paternal grandparents as “Grandparents,” and we refer to them individually as “Grandmother” and “Grandfather,” even though any biological relationship exists only with E.H. and not with the other six Children.
[3] L.H. was removed from the home for a one-month period during this time, again because of concerns that he was malnourished and “failing to thrive.”
[4] These arrangements were a bit fluid during this period—at one point, the oldest four Children were combined into one placement, and the fifth-oldest was placed with Foster Family along with the Subject Children. However, the mother of the Foster Family testified at trial that, after a while, the fifth child often got upset at how his younger siblings were becoming so attached to Foster Family, and so she eventually asked that he be placed elsewhere.
[5] The abbreviation “ICPC” refers to the Interstate Compact on the Placement of Children, an interstate agreement that has been adopted by all fifty states. See Utah Code Ann. § 62A-4a-701 (LexisNexis 2018). The ICPC allows child welfare agencies from different states to more easily cooperate regarding placement of children across state lines.
[7] The facts recited in this paragraph regarding Parents’ communications with their various attorneys are not in the record, but are included in the materials submitted on appeal in support of Parents’ claim of ineffective assistance of counsel.
[8] Parents also raise other issues, including an assertion that Private Counsel rendered deficient performance that prejudiced them at the termination trial. Although we acknowledge the strength of Parents’ assertion that Private Counsel rendered ineffective assistance, and discuss in passing the problems they had with him, we need not reach the merits of that claim or any of their other claims because we reverse on the merits of their main claim.
[9] A court’s consideration of the importance of sibling relationships is arguably even more important in the termination/adoption context than it is in the child custody context, simply because of the permanency of termination and adoption. When split custody is ordered in a domestic case, the children will not live together all the time, but their overarching family relationship remains intact; they will remain siblings and, depending on visitation schedules, they will likely see each other several times each month. But when—as in this case—siblings are separated for purposes of adoption, the familial bonds, including the sibling bonds, are more permanently affected.
[10] Parents assert that the juvenile court erred by limiting its best interest inquiry to the Subject Children, rather than considering whether termination of Parents’ rights to the Subject Children was in the best interest of all the Children. Although we are far from persuaded by Parents’ assertion, we need not further concern ourselves with it, because for purposes of our analysis we assume, without deciding, that the juvenile court properly focused on the Subject Children when conducting the best-interest inquiry. Even assuming the propriety of that more limited focus, we nevertheless find the court’s ultimate best-interest determination unsupported by clear and convincing evidence.
[11] DCFS’s actions in this regard were arguably contrary to statute. See Utah Code Ann.§ 62A-4a-205(12)(a) (LexisNexis Supp. 2022) (stating that DCFS must “incorporate reasonable efforts to . . . provide sibling visitation when siblings are separated due to foster care or adoptive placement”); see alsoid. § 80-3307(12)(a) (requiring DCFS to “incorporate into the child and family plan reasonable efforts to provide sibling visitation if . . . siblings are separated due to foster care or adoptive placement”).
[12] The juvenile court addressed this issue in its written ruling, and downplayed the significance of the delayed ICPC report. It expressed its view that, even if DCFS had timely requested the ICPC report, the case would not have come out differently. First, it assumed that the ICPC process would have taken a year to complete even if the report had been requested in July 2019. We wonder about that, and in particular wonder whether any of the delays in completing the ICPC report were due to the emergence of the pandemic. But more to the point, the court indicated that it would have made the same termination decision in July 2020 as it made in October 2020. However, the court does not account for the fact that all parties to the case, including DCFS, were on the same page at least as late as March 12, 2020, and anticipated placing all the Children with Grandparents as soon as the ICPC report came back. Had the ICPC report come back significantly earlier, while the parties were still in agreement, things almost certainly would have been different. We doubt that the juvenile court would have rejected the parties’ stipulation on that point, just as it did not reject the parties’ October 2020 stipulation regarding the five oldest Children.
[13] Indeed, concerns about Parents potentially getting back into the lives of the Subject Children appear especially overblown under the facts of this case, given the fact that the juvenile court approved the stipulation for a permanent guardianship arrangement for the other five Children. The court does not convincingly explain why it is concerned for the Subject Children and not the others, stating only that the potential for the Parents to “regain custody . . . might not be devastating for the older children, but it will certainly be devastating to” the Subject Children. Presumably, this is a reference to the fact that the Subject Children are younger and have less of a pre-existing relationship with Parents and the other Children, an aspect of this case that we have already discussed.
Thank you for your question, and forgive me for approaching this question in a way that may not answer your question as directly as it could be; I hope you will find my answer enlightening just the same.
If my purely selfish desires regarding particular controversies that I’d like to handle as a lawyer wouldn’t affect real people’s lives, then I’d love, as a divorce and family law attorney, to represent one of the parents in a case where 1) neither parent wants sole custody of the children and 2) each parent wants to foist custody of the children on the other.
Why?
Because it would shine a light on the moral and intellectual bankruptcy of the belief that it is somehow wrong to award joint equal physical custody of children to two equally fit and loving parents who both desire to be as involved in their children’s lives as possible.[1]
How?
Because the court would find itself in the unusual position of dealing with parents fighting to get as little time with the children as possible and thus find itself having to formulate and make arguments forboth parents exercising custody of their children as much as possible (instead of trying to justify an unequal custody award where equal custody could clearly work or at least merit a try).
The cognitive dissonance would be glorious—absolutely glorious—to behold. The infirmity of the “arguments” for denying two fit, loving parents equal custody would be laid bare for all to see.
Not every parent is fit to exercise joint or sole physical custody of his/her child, but parents who are 1) fit and loving; 2) desirous of ensuring their children are reared as much as possible by both of their parents; and 3) live in close enough proximity to each other to make joint equal physical custody not merely feasible but beneficial to the minor children: A) should have their parental rights upheld to the fullest extent possible by awarding joint equal physical custody because B) the “best parent” for the children is both parents.
The idea that we presumptively divide marital assets equally in divorce because that is presumptively fair is the same reason we should presumptively award joint equal physical child custody. If the presumption of dividing marital assets equally is rebutted by showing, for example, that a spouse materially dissipated marital assets or wrongfully diminished their value, then clearly an equal division of the assets would not be fair. Likewise, if the presumption of awarding equal custody is rebutted by showing that it would be deleterious to the children in some material way, then an equal custody award would not be fair to the children.
Yet the laws of most states in the U.S.A. do not adopt a presumption of joint equal physical custody (but I should note that currently the legislative trend is toward adopting presumption of equal custody), and even among those states that do, many judges in those states disfavor equal physical custody awards.
For all the good sense equal physical custody makes, it is surprisingly (scandalously) difficult to obtain an equal physical custody award.
———-
[1] To quote the Core Principles of the National Parents Organization (sharedparenting.org):
Shared parenting protects children’s best interests and the loving bonds children share with both parents after separation or divorce;
Equality between genders has been extended to every corner of American society, with one huge exception: Family Courts and the related agencies; and
The Supreme Court of the United States has found that “the interest of parents in the care, custody, and control of their children… is perhaps the oldest of the fundamental liberty interests recognized by this Court.”
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN FORSTER concurred.
HARRIS, Judge:
¶1 D.E. (Father) obtained—at least for a while—parental rights regarding J.E. (Child) when he and Child’s mother (Mother) duly signed and filed a voluntary declaration of paternity (the VDP). Later, however, genetic testing revealed that Father is not Child’s biological father. Based on those test results, the guardian ad litem (the GAL) appointed to represent Child raised a challenge to the VDP, which the juvenile court sustained, later issuing an order invalidating the VDP and declaring it “void.”
¶2 Father now challenges that order, asserting that the GAL (on behalf of Child) had no right under applicable law to challenge the VDP. We first determine that we have jurisdiction to consider Father’s appeal. And on the merits, we conclude that the juvenile court correctly determined that, under the circumstances presented here, Child has statutory standing to challenge the VDP. On that basis, we affirm the court’s decision to reach the merits of Child’s challenge and to sustain that challenge. But the court should not have declared the VDP “void,” and we remand for correction of the language used in the court’s order and for such other proceedings as might be appropriate.
BACKGROUND[1]
¶3 In 2021, Father and Mother were residing together—but not married—with three children: then-one-year-old Child and his two older siblings. All three children are Mother’s biological children, and Father’s paternity had been established as to the older two children. At the time, both Mother and Father were uncertain whether Father was the biological father of Child, because they were both aware that Mother had engaged in sexual activity with both Father and another man in 2019, around the time Child had been conceived. But neither Father nor any other man had established paternity with regard to Child.
¶4 In early 2021, Father was arrested and charged with aggravated assault involving domestic violence, as well as commission of domestic violence in front of a child, related to an incident in which Mother accused him of attempting to smother her with a pillow in front of the children. The charging document labeled Father a “habitual violent offender,” explaining that he had previously been convicted of domestic violence against Mother in connection with a 2019 incident. Father remained incarcerated on these new charges for several weeks. Mother also obtained a civil protective order against Father, which remained in effect for several months, until she asked for it to be dismissed.
¶5 A few weeks after Father’s arrest, Mother was arrested and incarcerated on charges of drug possession. Mother later admitted that she had been using methamphetamine. At that point, the Department of Child and Family Services (DCFS) filed a petition seeking custody of the children, and the court granted that request at a subsequent shelter hearing.
¶6 A month later, in May 2021, Mother remained incarcerated—she was eventually released in August—but Father had been released from jail after the criminal charges against him were dismissed. The record before us does not disclose the reasons for the dismissal of the criminal case, but the dismissal occurred on the date set for preliminary hearing, and it was entered without prejudice. Neither the State nor the juvenile court viewed the dismissal of the criminal charges as an exoneration of Father; indeed, the court eventually scheduled an evidentiary hearing to consider whether Father had committed domestic violence against Mother and, at the conclusion of that hearing, found that all three children were “neglected by” Father.
¶7 After his release from jail, Father requested that the children be returned to his custody. The court denied that request, but did order that Father be allowed supervised visitation with at least some of the children.
¶8 At another hearing a couple of weeks later, the GAL first raised the issue of Child’s paternity, and asked that the court order genetic testing to determine whether Father was indeed Child’s biological father. Neither Father nor Mother opposed this request, and the court therefore ordered that genetic testing take place, an order that necessarily required that Father, Mother, and Child all separately submit to genetic testing.
¶9 On August 5, 2021, Father submitted a biological sample for genetic testing. Mother and Child, however, did not submit biological samples until August 19. On August 18, the day before Mother and Child submitted their samples, Father and Mother signed and filed the VDP. On that form, they both swore that they “believe[d]” that Father was Child’s biological father. And Father answered “no” to a question asking whether “the birth mother, child, and biological father” had “submitted to genetic testing.” The Utah Office of Vital Records and Statistics accepted the VDP as valid, and that same day issued an amended birth certificate for Child, listing Father as Child’s father.
¶10 Following the filing of the VDP, Father (through counsel) filed a motion seeking visitation with Child, alleging that DCFS had been “not allowing” him to have visitation because the GAL “is opposed to the visits.” The GAL filed a response that asked the court to postpone its decision on visitation with Child until the results of the genetic testing were known. In that same opposition memorandum, the GAL raised a challenge to the VDP, specifically invoking sections 78B-15-302 and -307 of the Utah Code. In particular, the GAL asserted that Father had fraudulently answered some of the questions on the VDP, and asserted that, if the pending genetic testing excluded Father as Child’s biological father, the VDP could also be challenged on the ground that there had been a material mistake of fact. In reply, Father asserted that the VDP, which had been accepted by the Office of Vital Records and Statistics, gave him parental rights as Child’s father, and that he was therefore entitled to visitation. He also requested a hearing regarding the GAL’s challenge to the VDP.
¶11 In late September 2021, while Father’s motion for visitation was pending, the genetic test results came back and demonstrated that Father is not Child’s biological father.
¶12 Eventually, the court held an evidentiary hearing to consider Father’s motion for visitation. At that hearing, the court heard brief testimony, under oath, from both Father and Mother. After their testimony, the GAL asserted that Father should be denied visitation because, among other reasons, Father was not Child’s biological father. In connection with that argument, the GAL pressed the challenge to the VDP that she had raised in her opposition brief and asked for the VDP to “be declared void and be rescinded,” specifically asking for that relief to be “entered pursuant to [section] 78B-15-623” of the Utah Code (referred to herein as “Section 623”), a statutory provision the GAL had not mentioned in her opposition brief. Section 623 provides, in relevant part, that “[a] child is not bound by a determination of parentage” unless “the determination was based on an unrescinded declaration of paternity and the declaration is consistent with the results of genetic testing.” See Utah Code Ann. § 78B-15-623 (LexisNexis 2018). The GAL asserted that the VDP was subject to a challenge by Child because the results of the genetic testing indicated that Father was not Child’s biological father. In addition, the GAL pressed the arguments that had been raised in her brief, asserting that the VDP was fraudulent because Father had allegedly been less than candid when he stated that he “believe[d]” that he was Child’s father and when he answered “no” to the question on the form about genetic testing.
¶13 At the conclusion of the hearing, and after a brief recess, the court in an oral ruling granted the GAL’s request to invalidate the VDP, relying on Section 623 and on the fact that the genetic testing had conclusively determined that there was no biological relationship between Father and Child. Addressing Father, the court stated, “[Y]ou are not the father of [Child] at this point.” And the court declined Father’s invitation to order that he receive visitation with Child but, given Father’s established biological relationship with the other two children and given the fact that Father was “probably the only parental figure on the male side that [Child] has know[n],” the court nevertheless left the door open for DCFS to “allow” Father to have visitation with Child if DCFS believed that visitation would serve Child’s best interest. The court later signed a minute entry reflecting its oral ruling, therein declaring that the VDP “is void.”
ISSUES AND STANDARDS OF REVIEW
¶14 Father appeals the juvenile court’s decision to invalidate the VDP and to declare it void. At the center of Father’s challenge is his assertion that Child, by and through the GAL, does not possess statutory standing to challenge the VDP. This question is one of statutory interpretation, and on such matters we afford no deference to trial courts’ decisions. SeeState v. Outzen, 2017 UT 30, ¶ 5, 408 P.3d 334 (“We review questions of statutory interpretation for correctness, affording no deference to the [trial] court’s legal conclusions.” (quotation simplified)).
¶15 But before reaching the merits of Father’s appeal, we must first determine whether we have jurisdiction to adjudicate it.[2]
“Questions about appellate jurisdiction are questions of law” that, by definition, arise for the first time in the appellate setting. SeeZion Village Resort LLC v. Pro Curb U.S.A. LLC, 2020 UT App 167,
¶ 21, 480 P.3d 1055 (quotation simplified); see alsoPowell v. Cannon, 2008 UT 19, ¶ 9, 179 P.3d 799 (“The question of whether an order is final and appealable is a question of law.” (quotation simplified)).
ANALYSIS
I. Jurisdiction
¶16 Before we may reach the merits of Father’s appeal, we must first assess whether we have jurisdiction to adjudicate it. For the reasons discussed, we conclude that we do.
¶17 “As a general rule, an appellate court does not have jurisdiction to consider an appeal unless the appeal is taken from a final order or judgment that ends the controversy between the litigants.” Copper Hills Custom Homes LLC v. Countrywide Bank, FSB, 2018 UT 56, ¶ 10, 428 P.3d 1133 (quotation simplified); see alsoWilliams v. State, 716 P.2d 806, 807 (Utah 1986) (noting that one of the “traditional principles of appellate review” is “the final judgment rule,” which generally (subject to a few exceptions) prevents appellate courts from reviewing an appeal unless it comes “from a final judgment concluding all of the issues in the case”). The final judgment rule promotes efficiency by preventing the piecemeal litigation and seriatim appeals that would result if litigants were permitted, by right, to immediately appeal any adverse ruling by a trial court.
¶18 Conceptually, “the finality of an order in juvenile proceedings is determined the same way as the finality of an order in other courts.” In re A.F.,2007 UT 69, ¶ 3, 167 P.3d 1070 (quotation simplified). Indeed, in juvenile courts, as in other courts, a “final order is one that ends the current . . . proceedings, leaving no question open for further judicial action.” Id. (quotation simplified). Certainly, an order in a juvenile court case that completely resolved all matters as to all parties would be a final order, just as a similar order would be in a district court case.
¶19 But it is fair to say that, in appeals from juvenile court, finality is viewed somewhat more flexibly than in the district court context. “In the child welfare arena, the determining factor in deciding if an order is final and appealable is whether it effects a change in the permanent status of the child.” Id. Because a child’s status can change more than once, and because a “juvenile court frequently retains jurisdiction over cases [even] after some of the issues have been finally resolved,” see In re K.F., 2009 UT 4, ¶ 36, 201 P.3d 985 (quotation simplified), “in child welfare proceedings, unlike traditional civil cases, appeals may be heard from more than one final judgment,” In re A.F.,2006 UT App 200, ¶ 8, 138 P.3d 65, aff’d, 2007 UT 69, 167 P.3d 1070 (quotation simplified). Therefore, a determination of whether a juvenile court order is final and appealable “requires pragmatic analysis of the order itself.” Id. ¶ 9.
¶20 Under this “pragmatic analysis,” “it is the substance, not the form, of the . . . order that matters . . . because the determination whether an order is final and appealable turns on the substance and effect of the order.” Id. (quotation simplified). Any order that effects a “permanent change in the child’s status vis-à-vis the child’s parent” is considered final. SeeIn re K.F., 2009 UT 4, ¶ 36. Particular types of orders that are considered final include those “entered upon disposition of an adjudicated petition of abuse, neglect, or dependency” and those “terminating parental rights,” seeid. (quotation simplified), as well as “orders that otherwise relieve a party from further litigation,” seeIn re A.F., 2006 UT App 200, ¶ 10. On the other hand, shelter orders and orders that “merely terminate reunification services and change the child’s permanency goal to adoption” are not considered final because they contemplate “further judicial action” regarding the parent and the child. SeeIn re K.F., 2009 UT 4, ¶ 37.
¶21 Father asserts that the juvenile court’s order declaring the VDP void is final and appealable because it “effectively terminated the parental rights statutorily conferred upon him” through the VDP. We agree with Father, as does the State. From a finality perspective, the court’s order declaring the VDP void is analogous to an order terminating parental rights, because the order canceled theretofore-valid parental rights that Father had (at least temporarily) acquired by virtue of filing a voluntary declaration of paternity that was accepted by the Office of Vital Records and Statistics. SeeScott v. Benson, 2021 UT App 110, ¶ 22 n.4, 501 P.3d 1148 (“A [voluntary declaration of paternity] is valid and effective if it meets all the basic statutory requirements and is accepted by the Office of Vital Records.”), cert. granted, 509 P.3d 196 (2022). In analogous contexts, we have determined that similar orders are final and appealable. SeeIn re A.S., 2007 UT App 72U, para. 1 (per curiam) (holding that an order dismissing a putative father “from the termination case and denying a motion for genetic testing” was final and appealable because it “dismissed [the putative father] as a party and relieved him from further litigation”); see alsoIn re A.F., 2006 UT App 200, ¶ 10 (stating that “orders that otherwise relieve a party from further litigation” are appealable).
¶22 The fact that litigation regarding Child continues in the juvenile court is not dispositive of the question of appealability of the subject order. See In re E.L.F., 2011 UT App 244, ¶ 5, 262 P.3d 1196 (recognizing that a “juvenile court’s retention of jurisdiction over a child does not necessarily defeat finality”); see alsoIn re K.F., 2009 UT 4, ¶ 36 (stating that a “juvenile court frequently retains jurisdiction over cases [even] after some of the issues have been finally resolved” (quotation simplified)). The fact that the juvenile court left the visitation door slightly ajar for Father likewise does not defeat finality, under the unique circumstances presented here; the court’s order deprived Father of all parental rights, leaving DCFS with sole discretion to determine whether, and to what extent, Father may visit Child.
¶23 Applying a pragmatic analysis here, we conclude that the subject order, by eliminating all of Father’s claimed parental rights, effected a “permanent change in the child’s status vis-à-vis” Father, seeIn re K.F., 2009 UT 4, ¶ 36, and effectively ended Father’s involvement in the case. Under these circumstances, the order from which Father appeals must be considered final, and we therefore have jurisdiction to consider the merits of his appellate challenge.
II. The Merits of Father’s Appeal
¶24 We begin our analysis of the merits of Father’s appeal with a discussion of voluntary declarations of paternity, and by explaining how Father did—at least for a time—secure valid parental rights regarding Child. We then list some of the ways in which voluntary declarations of paternity can be challenged, and conclude that Child (through the GAL) had standing to raise one such challenge, and that Child’s challenge has merit. Accordingly, we conclude that the juvenile court correctly sustained Child’s challenge to the VDP, but should not have referred to it as “void.”
A
¶25 There are a number of ways for a parent to establish a legally valid parent-child relationship, many of which are “based on the notion that parents should generally have parental rights regarding their biological children.” SeeScott v. Benson, 2021 UT App 110, ¶ 18, 501 P.3d 1148, cert. granted, 509 P.3d 196 (2022); see alsoLehr v. Robertson, 463 U.S. 248, 256–57 (1983) (recognizing “[t]he intangible fibers that connect parent and child”); Stanley v. Illinois, 405 U.S. 645, 651 (1972) (holding that a biological father’s interest “in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest,” constitutional protection). “In most cases, parental status is established, based on an assumed biological connection, simply by presumption of circumstance.” Scott, 2021 UT App 110, ¶ 19. For example, in the absence of a valid gestational agreement, a mother establishes a parental relationship with any child to whom she gives birth. See Utah Code Ann. § 78B-15-201(1)(a)(i) (LexisNexis 2018).
¶26 Some fathers also obtain parental rights by presumption of circumstance. For instance, a father-child relationship is established when a man “and the mother of the child are married to each other” when the child is born. Id. §§ 78B-15-201(2)(a), -204(1)(a). But a father who is not married to the mother of the child must take additional steps to establish his paternity.
¶27 One avenue open to unmarried biological fathers is to establish paternity by declaration, an option that—crucially— requires the written consent of the child’s mother. See id. §§ 78B15-301, -302. A successful declaration of paternity, “duly signed and filed, has the same effect as a judicial determination of paternity.” In re S.H., 2005 UT App 324, ¶ 15, 119 P.3d 309. To be effective, both the mother and declarant father must sign the declaration “in the presence of two witnesses” and make several statements “under penalty of perjury.” See Utah Code Ann. § 78B15-302(1). Of particular relevance here, the parties must also attest that the child “whose paternity is being declared” does not have a presumed, adjudicated, or declarant father, and they must “state whether there has been genetic testing and, if so, that the declarant man’s paternity is consistent with the results of the testing.” See id. § 78B-15-302(1)(d), (e). “A declaration of paternity shall be considered effective when filed and entered into a database established and maintained by the Office of Vital Records.” Id. § 78B-15-302(9).
¶28 Father chose this avenue; he and Mother jointly signed and filed the VDP on August 18, 2021, after answering several written questions under penalty of perjury. As already noted, they both averred that they “believe[d]” Father to be Child’s biological father, and Father answered “no” to a question asking whether “the birth mother, child, and biological father [had] submitted to genetic testing.” The Office of Vital Records and Statistics accepted the VDP as valid, and that same day issued an amended birth certificate for Child, listing Father as Child’s father. At that point, Father’s parental rights regarding Child were definitively established. Seeid. § 78B-15-305(1) (LexisNexis 2018) (stating that “a valid declaration of paternity filed with the Office of Vital Records is equivalent to a legal finding of paternity of a child and confers upon the declarant father all of the rights and duties of a parent”); see alsoScott, 2021 UT App 110, ¶ 22 n.4 (“A declaration is valid and effective if it meets all the basic statutory requirements and is accepted by the Office of Vital Records.”); In re S.H., 2005 UT App 324, ¶ 15 (stating that a declaration of paternity “duly signed and filed, has the same effect as a judicial determination of paternity”).
B
¶29 Declarations can, however, be challenged after they have been accepted by the Office of Vital Records and Statistics. SeeScott, 2021 UT App 110, ¶ 23 (“Voluntary declarations of paternity are, however, subject to challenge.”). Applicable statutes permit several different types of challenges to validly filed declarations. For example, a declaration may be challenged as “void” if it fails to meet certain threshold criteria regarding the existence of another potential father. See Utah Code Ann. § 78B15-302(3) (referred to herein as “Section 302”). Alternatively, a “signatory” of a declaration may rescind it within sixty days, without specifying any reason. Id. § 78B-15-306(1) (referred to herein as “Section 306”). Further, after the rescission period has expired, a declaration may be challenged by certain parties “on the basis of fraud, duress, or material mistake of fact.” Seeid. § 78B-15-307 (referred to herein as “Section 307”). And as relevant here, Section 623 provides that “[a] child is not bound by a determination of parentage . . . unless . . . the determination was based on an unrescinded declaration of paternity and the declaration is consistent with genetic testing.” Seeid. § 78B-15-623(2).
¶30 Before the juvenile court, the GAL raised a challenge to the VDP and, by the time of the hearing, had elected to ground that challenge largely in Section 623.[3] The court accepted the GAL’s Section 623 argument, and Father challenges that decision here on appeal. For the reasons that follow, we conclude that the juvenile court correctly found merit in the GAL’s Section 623 challenge.
¶31 Section 623 begins by stating that “a determination of parentage is binding on . . . all signatories to a declaration . . . of paternity . . . and . . . all parties to an adjudication [of parentage] by a tribunal.” Id. § 78B-15-623(1). The next section of the statute provides as follows:
(2) A child is not bound by a determination of parentage under this chapter unless:
(a) the determination was based on an unrescinded declaration of paternity and the declaration is consistent with the results of genetic testing;
(b) the adjudication of parentage was based on a finding consistent with the results of genetic testing and the consistency is declared in the determination or is otherwise shown; or
(c) the child was a party or was represented in the proceeding determining parentage by a guardian ad litem.
Id. § 78B-15-623(2). The precise question presented is whether Section 623 gives a child the right to challenge a putative father’s duly filed declaration of paternity on the basis that the declaration is inconsistent with genetic testing results. We hold that it does.
¶32 The question before us is, at root, one of statutory interpretation. “When interpreting a statute, our primary objective is to ascertain the intent of the legislature, the best evidence of which is the plain language of the statute itself.” Taylor v. Taylor, 2022 UT 35, ¶ 28, 517 P.3d 380 (quotation simplified). In examining the language of a statute, “we do not view individual words and subsections in isolation; instead, our statutory interpretation requires that each part or section be construed in connection with every other part or section so as to produce a harmonious whole.” Penunuri v. Sundance Partners Ltd., 2013 UT 22, ¶ 15, 301 P.3d 984 (quotation simplified); see alsoState v. Bess, 2019 UT 70, ¶ 25, 473 P.3d 157 (“We read the plain language of the statute as a whole and interpret its provisions in harmony with other statutes in the same chapter and related chapters.” (quotation simplified)). And if this exercise “provides a workable result, we need not resort to other interpretive tools, and our analysis ends.” Torrie v. Weber County, 2013 UT 48, ¶ 11, 309 P.3d 216 (quotation simplified). In accordance with these principles, we begin our analysis with an overview of the relevant statute’s structure.
¶33 The statute in question is the Utah Uniform Parentage Act (the Act), codified at Title 78B, Chapter 15 of the Utah Code. See Utah Code Ann. §§ 78B-15-101 to -902 (LexisNexis 2018). Section 623’s reference to “a determination of parentage under this chapter,” then, refers to any determination of parentage made under any of the various parts of the Act. Seeid. § 78B-15-623(2) (emphasis added). Part 3 of the Act governs voluntary declarations of paternity, seeid. §§ 78B-15-301 to -313, and Part 6 of the Act governs judicial adjudications of parentage, seeid. §§ 78B-15-601 to -623. Indeed, the term “determination of parentage,” as used in Section 623, has a specific statutory definition: our legislature has provided that a “determination of parentage” means either (a) “the establishment of the parent-child relationship by the signing of a valid declaration of paternity under Part 3,” or (b) “adjudication [of parentage] by a tribunal” under Part 6. Seeid. § 78B-15-102(9).
¶34 In this case, any parental rights claimed by Father are derived not from any judicial adjudication of paternity but, rather, from the VDP. Indeed, the Act is clear with regard to the effect of a properly filed declaration of paternity: “a valid declaration of paternity filed with the Office of Vital Records is equivalent to a legal finding of paternity of a child and confers upon the declarant father all of the rights and duties of a parent,” without the necessity of initiating judicial proceedings or obtaining a court order. Seeid. § 78B-15-305(1); see alsoIn re S.H., 2005 UT App 324, ¶ 15 (stating that a declaration of paternity “duly signed and filed, has the same effect as a judicial determination of paternity”). Phrased in the language of Section 623, then, the “determination of parentage” at issue here took place pursuant to Part 3, not Part 6, and it occurred not in any courtroom but at the front counter (or its metaphorical online equivalent) at the Office of Vital Records and Statistics.
¶35 As noted, Section 623 provides that “[a] child is not bound by a determination of parentage” unless at least one of three criteria are met. See Utah Code Ann. § 78B-15-623(2). With regard to the specific “determination of parentage” at issue here, none of the three listed criteria are met.
¶36 First, the “determination of parentage” at issue in this case was not “based on an unrescinded declaration of paternity” that is “consistent with genetic testing.” Seeid. § 78B-15-623(2)(a). To be sure, the determination of parentage here was based on an “unrescinded declaration of paternity”; after all, Father’s only claim to paternity was made through the VDP, and neither Father nor Mother had exercised any rights they had, pursuant to Section 306, to rescind the VDP within sixty days of signing it. Seeid. § 78B-15-306. But the unrescinded VDP at the heart of Father’s paternity claim turned out to be entirely inconsistent with the genetic test results that came back in September 2021. For this reason, the “determination of parentage” at issue here was not based on a declaration of paternity that was “consistent with the results of genetic testing.” Id. § 78B-15-623(2)(a) (emphasis added). Thus, the first criterion is inapplicable.
¶37 The second criterion is likewise inapplicable, for two reasons. First, this criterion applies only to an “adjudication of parentage,” seeid. § 78B-15-623(2)(b), and no such adjudication occurred here, where Father’s parental rights, if any, are derived under Part 3, from the VDP, rather than through a judicial process. And second, this criterion also depends upon “genetic testing” being “consistent with” the adjudication of parentage and, as already noted, the genetic testing in this case excluded Father from any biological relationship with Child. Seeid.
¶38 Finally, the third criterion has no application either. That criterion applies if “the child was a party or was represented in the proceeding determining parentage by a guardian ad litem.” Id. § 78B-15-623(2)(c). To be sure, Child was represented by the GAL in the proceedings before the juvenile court, and is represented by the GAL in this appeal. But Child was not involved, in any way, in the “proceeding determining parentage” at issue here. Again, that “proceeding” occurred on August 18, 2021, when Father and Mother appeared at the Office of Vital Records and Statistics to fill out the VDP, and when that office accepted the VDP they filed. That proceeding took place entirely outside of court, and Child had no voice or representation therein. Accordingly, the third criterion is likewise inapplicable.
¶39 Because none of the three exceptional criteria apply here, Section 623 provides that Child is “not bound by [the] determination of parentage” in this case. Seeid. § 78B-15-623(2) (emphasis added). In our view, this language must necessarily mean that Child has the right to challenge the VDP.[4]
¶40 The words “not bound by” are not defined in the Act. In such a situation, we “interpret the statutory language according to the plain meaning of its text.” SeeO’Hearon v. Hansen, 2017 UT App 214, ¶ 24, 409 P.3d 85 (quotation simplified). And in doing so, we give the words the meaning they are given in ordinary daily usage. SeeState v. Rincon, 2012 UT App 372, ¶ 10, 293 P.3d 1142 (“When construing a statute, words that are used in common, daily, nontechnical speech, should, in the absence of evidence of a contrary intent, be given the meaning which they have for laymen in such daily usage.” (quotation simplified)).
¶41 In our view, the words “not bound by” must include a right to challenge the determination of parentage. A child who has no right to challenge the determination in question, even in a case where none of the three statutory criteria applied, would effectively be bound by it. Stated another way, in order to be “not bound by” something, there must exist a way to get out from under its obligations. After all, the words “not bound by” would be deprived of all effective meaning if a child had no right to challenge the determination of parentage at issue. Even Father and the amicus curiae both acknowledge, in recently filed briefs, that Child has statutory standing to challenge the VDP under Part 6. For these reasons, we conclude that Section 623 provides Child the right to challenge the VDP—an unrescinded declaration of paternity upon which Father’s claim to paternity is based—on the ground that the declaration is inconsistent with “the results of genetic testing.” See Utah Code Ann. § 78B-15-623(2)(a).
¶42 Once it is established that Child has the right to mount a challenge to the VDP, we must turn to the merits of that challenge. And Father, here on appeal, does not seriously contest the merits of Child’s attack on the VDP. Father instead acknowledges, as he must, that the genetic testing excluded him as Child’s biological father, and that the genetic testing is, therefore, inconsistent with his claims to paternity under the VDP. Accordingly, the juvenile court correctly determined that Child’s Section 623 challenge to the VDP was meritorious.
¶43 But while the juvenile court’s ruling is correct on its merits, the court used incorrect nomenclature to describe the effect of its ruling. The court ruled that the VDP “is void,” thereby apparently purporting to invalidate it ab initio and render it without force or effect from the date it was filed. This was incorrect. A challenge to a declaration of paternity based on inconsistency with genetic testing is a challenge alleging “a material mistake of fact.” Seeid. § 78B-15-307(5) (stating that “genetic test results that exclude a declarant father . . . constitute a material mistake of fact”). And as we explained in Scott, the effect of a successful challenge on this basis—as opposed to a challenge grounded in Section 302 or Section 306—is “not that the declaration of paternity is rendered void from its inception” but, instead, that the “declaration will be set aside, on a going-forward basis.” See 2021 UT App 110, ¶ 40.
¶44 In our view, a challenge brought by a child under Section 623 alleging that genetic testing is inconsistent with a declarant father’s declaration is substantively similar to the type of challenge we examined in Scott. Neither challenge is grounded in Sections 302 or 306, statutory provisions that expressly provide that voidness will result from a successful challenge. And both challenges arise from the same set of circumstances, namely, genetic testing that does not match a putative father’s claims to paternity. We therefore hold that, where a child makes a successful Section 623 challenge to a declaration of paternity, the result is that the declaration “will be set aside, on a going-forward basis,” and will not be declared void from the date of its inception. Seeid. As applied to this case, these principles dictate that Father had legal parental rights for some three months, from August 18 through November 16, 2021, but that his parental rights ended, prospectively, with entry of the court’s order sustaining Child’s Section 623 challenge.
¶45 Finally, both Father and the amicus curiae—in recently filed supplemental briefs—raise the potential applicability of section 78B-15-608 of the Utah Code (referred to herein as “Section 608”), a statutory section that allows a court, under certain conditions, to “disregard genetic test results that exclude the . . . declarant father.” Father asserts, for the first time in his supplemental brief, that he should be entitled to a hearing to determine whether the genetic test results eliminating him as Child’s biological father should be “disregarded” pursuant to Section 608. But Father makes this request for the first time in this recent brief; he did not raise a Section 608 defense to the GAL’s challenge before the juvenile court, nor did he mention Section 608 in either his opening or reply brief on appeal. Under these circumstances, Father has raised this legal theory far too late for us to consider it in the context of this appeal. Cf.Viertel v. Body Firm Aerobics LLC, 2022 UT App 96, ¶ 11, 516 P.3d 791 (“Appellants are not permitted to raise matters for the first time in a reply brief.” (quotation simplified)).
¶46 The amicus curiae, for its part, asserts that it was “mandatory” for the juvenile court to have conducted a Section 608 inquiry, including a “best interest of the child” analysis, even in the absence of a request by Father for it to do so; in this vein, the amicus curiae argues that the juvenile court committed plain error by not engaging in that analysis sua sponte. In particular, the amicus curiae rests its argument on statutory language stating that the court “shall consider the best interest of the child.” See Utah Code Ann. § 78B-15-608(2) (emphasis added). But in our view, the amicus curiae overreads the statute.
¶47 As we interpret it, Section 608 does not compel a juvenile court, in every instance in which any challenge to a VDP is sustained, to undertake a Section 608 analysis even if none of the parties request it. Litigants are entitled to select the specific defenses they raise to an opponent’s claim. The general rule, applicable in both district and juvenile courts, is that parties must request specific relief in order for a court to award it. Our judicial process ordinarily does not require courts to step in and examine legal theories that the parties have not themselves raised. SeeState v. Johnson, 2017 UT 76, ¶ 14, 416 P.3d 443 (“Under our adversarial system, the parties have the duty to identify legal issues and bring arguments before an impartial tribunal to adjudicate their respective rights and obligations.”). In this case, Father—who was represented by counsel at the time—elected to defend against the GAL’s challenge to the VDP by calling into question the GAL’s (or
Child’s) right to even mount the challenge. Father did not raise Section 608 as a possible defense, and he did not ask the juvenile court—in the event it concluded that the GAL had standing to challenge the VDP—to disregard the results of the genetic testing pursuant to Section 608.
¶48 We take the amicus curiae’s point that, whenever a party does specifically invoke Section 608 and ask a court to disregard genetic test results, that court must “consider the best interest of the child” in determining whether to do so. See Utah Code Ann. § 78B-15-608(2). But courts do not have an obligation to sua sponte raise Section 608, and undertake its concomitant best-interest analysis, in every case in which they are asked to consider a challenge to a VDP.[5] SeeUtah Stream Access Coal. v. VR Acquisitions, LLC, 2019 UT 7, ¶ 41, 439 P.3d 593 (stating that “judges are neutral arbiters—not advocates,” and that judges “keep [themselves] out of the business of second-guessing the pleading decisions of the parties”); cf.Scott, 2021 UT App 110, ¶ 43 (noting that the lower court, in that case, turned to a Section 608 analysis only at the “request” of one of the parties). If a putative parent wants a court to take the rather drastic and unusual step of disregarding the results of genetic testing, it will ordinarily be the parent’s responsibility to raise the issue.
¶49 And even assuming, for the purposes of the discussion, that plain error review is available here, seeKelly v. Timber Lakes Prop. Owners Ass’n, 2022 UT App 23, ¶ 42 n.10, 507 P.3d 357 (suggesting that plain error review may be available in certain types of civil cases, including termination of parental rights cases), we reject the amicus curiae’s assertion that, on the record before us, the juvenile court committed plain error by not invoking Section 608 sua sponte. Plain error occurs only when a court commits an obvious prejudicial error. SeeJohnson, 2017 UT 76, ¶ 20. Here, the juvenile court committed no obvious error. Nothing in Section 608 indicates that it is to be applied in every case, even sua sponte, regardless of whether any party ever invokes it. And the amicus curiae cites no appellate court case that so indicates. Where the law is not clear, a court does not commit obvious error. SeeState v. Dean, 2004 UT 63, ¶ 16, 95 P.3d 276 (“To establish that the error should have been obvious to the trial court, [a litigant] must show that the law governing the error was clear at the time the alleged error was made.”).
¶50 For these reasons, the juvenile court did not plainly err by not sua sponte undertaking an analysis pursuant to Section 608. And because Father did not raise that issue either before the juvenile court or in his initial brief, we decline to address Father’s argument that the court should have conducted such an analysis. We offer no opinion, however, regarding whether the issue could properly be raised after remand, especially given the fact that the juvenile court left the door open to Father’s involvement in the case going forward.
CONCLUSION
¶51 We have jurisdiction to consider the merits of Father’s appeal, because the juvenile court’s order canceled the parental rights that Father had temporarily acquired by filing the VDP and thereby effected a permanent change in Child’s status regarding Father. But on the merits of that appeal, we conclude that the juvenile court correctly sustained the GAL’s Section 623 challenge to the VDP, even if the court should not have used the word “void” to describe the result of its ruling. We therefore affirm the juvenile court’s decision to sustain the GAL’s challenge to the VDP, but remand with instructions for the court to modify its order to indicate that it has prospective effect only, and for such other proceedings as may be appropriate.
[2] After recognizing this jurisdictional question, we issued a Sua Sponte Motion for Summary Disposition, explaining that this appeal was being considered for summary disposition “on the basis that this court lacks jurisdiction because the order appealed from was not a final, appealable order.” We then ordered the parties to submit briefing on the jurisdictional question, which they did. Later, we also provided the parties the opportunity to submit supplemental briefing on the statutory standing question. Father and the GAL submitted supplemental briefs, and an amicus curiae submitted a brief on this topic as well. We appreciate the assistance of the parties and the amicus curiae in submitting supplemental briefing.
[3] As noted already, the GAL’s pre-hearing briefing before the juvenile court invoked Sections 302 and 307, but not Section 623. In their briefing on appeal, the parties include some discussion of other potential avenues for challenge. No party invokes Section 306, and both the State and the GAL appear to concede that the GAL—apparently because Child is not a “signatory” to the VDP—does not have statutory standing to challenge the VDP under Section 307. But the State does appear to invoke Section 302 in connection with its argument that the VDP was “fraudulently executed,” and on that basis appears to ask us to affirm the juvenile court’s ruling on this alternative ground. We have serious doubts about the merits of this argument, primarily because none of the three criteria for voidness set forth in Section 302 are present here, but also because any evidence of fraud on the part of Father or Mother is thin at best: they were not sure whether Father was Child’s biological parent, but had a basis to “believe” that he was, and Father’s answer about the state of genetic testing was technically correct, because on August 18 neither Mother nor Child had yet submitted samples for genetic testing. But we need not delve deeper into the State’s alternative argument, because we affirm the substance of the court’s ruling under Section 623.
[4] After all, Part 6 of the Act expressly provides that “the child” may maintain “a proceeding to adjudicate parentage,” and thereby challenge a parent’s paternity. See Utah Code Ann. § 78B-15-602(1). All parties to this appeal agree that a child has statutory standing under Part 6 to challenge a parent’s paternity.
[5] The amicus curiae runs into the same problem with its other best-interest related argument. It points out that guardians ad litem have authority created by statute, and that they are appointed “to represent the best interest of a minor.” See Utah Code Ann. § 78A-2-803(1)(a)(i) (LexisNexis Supp. 2022). It asserts that the GAL in this case, by challenging Father’s paternity, acted outside Child’s best interest, pointing out that Child has no other father figure in his life, and offering its view that “it is difficult to see how it can be in a child’s best interest to challenge the paternity of the only father figure participating in the case.” We acknowledge this argument, and agree with the amicus curiae that guardians ad litem have a statutory obligation to carefully consider whether the actions they take on a child’s behalf are in the child’s best interest. But ordinarily any challenge to a guardian ad litem’s actions as being outside a child’s best interest must come from one of the parties rather than from a court sua sponte, and must be raised in the first instance in the district or juvenile court. No such challenge was levied here by any party before the juvenile court, rendering the merits of any such challenge inappropriate for appellate review.
Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Attorneys for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES GREGORY K. ORME and RYAN D. TENNEY concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Appellant J.K. (Mother) appeals the juvenile court’s order substantiating several database findings of abuse entered by the Division of Child and Family Services (DCFS). We affirm.
BACKGROUND
¶2 In August 2020, the State filed with the juvenile court a Verified Petition for Protective Supervision requesting the court to find Mother’s son, K.T., “abused, neglected and/or dependent and to grant protective supervision of [K.T.] to DCFS.” The petition alleged that DCFS had on three separate occasions previously supported findings of abuse of K.T. against Mother.[1] In addition to the request for protective supervision of K.T., the petition requested that the juvenile court enter an order “[s]ubstantiating[2] the DCFS supported finding(s) pursuant to Utah Code Ann. § 78A-6-323,” now recodified at Utah Code section 80-3-404.[3]
¶3 In March 2021, following discussions with Mother, the State filed with the juvenile court an Amended Verified Petition for Protective Supervision. The amended petition again asked the court to find K.T. “neglected and/or dependent and to grant protective supervision of [K.T.] to DCFS,” but it eliminated the prior request that the court find K.T. to be “abused.” The amended petition repeated the original petition’s request that the court enter a finding “[s]ubstantiating the DCFS supported finding(s) pursuant to Utah Code” section 80-3-404.
¶4 The parties thereafter appeared before the juvenile court to adjudicate the amended petition. At the outset of the hearing, the State indicated it had reached an agreement with Mother to submit the amended petition “for [a] finding of neglect” and requested, without objection, that “the issue of substantiating the DCFS supported findings” be “set over.” Thereafter, Mother admitted many of the allegations of the amended petition. But pursuant to rule 34(e) of the Utah Rules of Juvenile Procedure, she declined to either admit or deny the allegations that DCFS had previously supported findings of abuse by Mother against K.T.[4] The parties then presented argument. The State argued for a finding of neglect, while Mother argued for a finding of dependency. After the hearing, the court entered a finding of neglect[5] and granted “[p]rotective supervision of [K.T.] . . . to DCFS.”[6] The court “reserve[d] the issue of substantiating the DCFS supported findings for the next hearing.”
¶5 In June 2021, the case came before the juvenile court for a disposition hearing, during which the State requested that the court address the substantiation issue. The court entertained argument and took the matter under advisement. It thereafter entered a written order substantiating the three DCFS supported findings of abuse by Mother contained in both the original and amended petitions. Specifically, it substantiated the supported findings that K.T. had suffered emotional abuse, physical abuse, and chronic emotional abuse.
ISSUES AND STANDARDS OF REVIEW
¶6 Mother now appeals the juvenile court’s order substantiating the DCFS supported findings of abuse and raises three issues for our review. The first two issues present questions as to the statutory authority of the juvenile court. Mother first argues the juvenile court exceeded its statutory authority to substantiate the DCFS findings of abuse because the amended petition alleged only neglect or dependency and the court had adjudicated only a finding of neglect. “Questions of jurisdiction and statutory interpretation are questions of law that we review for correctness, giving no particular deference to lower court decisions.” In re B.B.G., 2007 UT App 149, ¶ 4, 160 P.3d 9.
¶7 In a similar vein, Mother next argues the State and the juvenile court were bound by the stipulation of the parties to submit the amended petition only for “a finding of neglect.” When “the facts [are] stipulated, we review the conclusions drawn by the juvenile court for correctness.” In re B.T., 2009 UT App 182, ¶ 5, 214 P.3d 881 (quotation simplified).
¶8 Lastly, Mother alternatively argues her trial counsel was ineffective for not advising her that the juvenile court could deviate from its legal adjudication of neglect and later substantiate for abuse. “An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law.” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162.
ANALYSIS
I.
¶9 We turn first to Mother’s argument that the juvenile court exceeded its statutory authority in substantiating the DCFS findings for abuse because the amended petition alleged only neglect or dependency and the court had adjudicated K.T. as neglected. We are unpersuaded by this argument because it conflates the State’s request that the court adjudicate K.T. as neglected with its independent request that the court substantiate the DCFS supported findings of abuse. The State’s request to adjudicate K.T. as neglected so as to bring the child within the jurisdiction of the court and under the protective supervision of DCFS was separate from its request that the court substantiate DCFS’s finding that K.T. had suffered a severe type of child abuse. As explained below, the juvenile court had independent statutory authority to adjudicate both issues.
¶10 In Utah, proceedings concerning abuse, neglect, and dependency are governed by Chapter 3 of the Utah Juvenile Code (the UJC). Pursuant to Chapter 3, “any interested person may file an abuse, neglect, or dependency petition” in the juvenile court. Utah Code Ann. § 80-3-201(1) (LexisNexis Supp. 2022). Among other things, the petition must include “a concise statement of facts, separately stated, to support the conclusion that the child upon whose behalf the abuse, neglect, or dependency petition is brought is abused, neglected, or dependent.” Id. § 80-3-201(4)(a). After the petition is filed, the court may, upon making specific findings, “order that the child be removed from the child’s home or otherwise taken into protective custody.” Id. § 80-3-204(2). If the court so orders, a shelter hearing must then be held to determine whether continued removal and placement of the child in DCFS’s temporary custody are necessary. See id. § 80-3-301.
¶11 After the shelter hearing, the juvenile court conducts an adjudication hearing. See id. § 80-3-401. An adjudication is a determination of the merits of the State’s petition of abuse, neglect, or dependency. “If, at the adjudication hearing, the juvenile court finds, by clear and convincing evidence, that the allegations contained in the abuse, neglect, or dependency petition are true, the juvenile court shall conduct a dispositional hearing.” Id. § 80-3-402(1); see also In re S.A.K., 2003 UT App 87, ¶ 14, 67 P.3d 1037 (“In child welfare proceedings, if the petition’s allegations of neglect, abuse, or dependency are found to be true in the adjudication hearing, those findings provide the basis for determining the consequences in the disposition hearing.”). “The dispositional hearing may be held on the same date as the adjudication hearing . . . .” Utah Code Ann. § 80-3-402(2). Dispositions available after adjudication include, among other things, vesting custody of an abused, neglected, or dependent minor in DCFS or any other appropriate person. Id. § 80-3405(2)(a)(i). Thus, an adjudication of abuse, neglect, or dependency brings the child and family within the juvenile court’s jurisdiction.
¶12 A separate chapter of the UJC addresses child welfare services. Chapter 2 creates DCFS and establishes its statutory authority and responsibilities. Among these is its responsibility to investigate reports that a child is abused, neglected, or dependent and to enter findings at the conclusion of its investigations. See id. § 80-2-701. A “supported” finding by DCFS is based on evidence available at the completion of an investigation indicating that “there is a reasonable basis to conclude that abuse, neglect, or dependency occurred.” Id. § 80-1-102(89). Chapter 2 requires that DCFS notify alleged perpetrators of supported findings and establishes a procedure for challenging such findings. Id. §§ 80-2707, -708. In cases involving a supported finding of a severe type of child abuse, the statute also gives DCFS authority to file a petition in the juvenile court seeking substantiation of a supported finding. Id. § 80-2-708(1)(c).
¶13 Part 10 of Chapter 2 governs DCFS’s record-keeping responsibilities. DCFS uses a database known as the Management Information System to track child welfare and protective services cases. See id. § 80-2-1001(3), (4). DCFS uses a subset of that system known as the Licensing Information System (the LIS) to track cases for licensing purposes. See id. § 80-2-1002(1)(a)(i). In cases involving a severe type of child abuse or neglect, DCFS enters supported findings into the LIS and the alleged perpetrator thereafter “may be disqualified from adopting a child, receiving state funds as a child care provider, or being licensed by DCFS, a human services program, a child care provider or program, or a covered health care facility.” State v. A.C., 2022 UT App 121, ¶ 3, 521 P.3d 186 (quotation simplified).
¶14 All these statutes were in play in these proceedings. On three separate occasions prior to the State’s filing of the petition, DCFS had investigated Mother for abuse of K.T. Following each of its three investigations, DCFS had supported a finding of abuse of K.T. against Mother. One of those supported findings was of “chronic emotional abuse” of K.T., which falls within the statutory definition of a “severe type of child abuse” under Utah Code section 80-1-102(78)(a)(i)(A) that then must be entered into the LIS.
¶15 The amended petition removed the request that the juvenile court adjudicate K.T. as abused. Instead, it requested that the court adjudicate K.T. as neglected. But the amended petition also recited DCFS’s history with K.T., stating that DCFS had previously supported findings of abuse against Mother, and requested that the court substantiate these supported findings of abuse. Adjudicating both requests for relief fell squarely within the juvenile court’s express statutory authority. Indeed, Mother identifies no statutory provision limiting the court’s authority to substantiate DCFS findings of abuse based on the outcome of the State’s independent request to adjudicate the status of an allegedly abused, neglected, or dependent child.
¶16 Mother’s argument that the juvenile court’s substantiation decision must be consistent with its adjudication decision in a related petition for abuse, neglect, or dependency is also inconsistent with the burdens of proof dictated by the UJC. While the juvenile court may adjudicate a minor as abused, neglected, or dependent based only on clear and convincing evidence, it can substantiate a DCFS finding based on a mere preponderance of the evidence. Compare Utah Code Ann. § 80-1-102(87), withid. § 80-3-402(1). These different standards give rise to the distinct possibility that a juvenile court could decline to adjudicate a minor as abused, while still substantiating a DCFS finding of abuse based on the lower burden of proof.
¶17 Despite the absence of a statutory provision linking the outcome of the amended petition to the outcome of a request for substantiation, Mother argues the juvenile court’s ruling on the neglect petition ended the court proceedings, “leaving no question open for further judicial action.” (Quoting In re M.W., 2000 UT 79, ¶ 25, 12 P.3d 80.) But this argument is directly contrary to the statutory language. Utah Code section 80-3-404 addresses the responsibility of the juvenile court to adjudicate DCFS supported findings of severe child abuse or neglect and their inclusion in or removal from the LIS. Upon the filing of “an abuse, neglect or dependency petition . . . that informs the juvenile court that [DCFS] has made a supported finding that an individual committed a severe type of child abuse or neglect, the juvenile court shall . . . make a finding of substantiated, unsubstantiated, or without merit” and include the finding in a written order. Utah Code Ann. § 80-3-404(1) (emphasis added). This provision also allows joinder of proceedings for adjudication of supported findings of severe abuse or neglect with those that do not constitute severe abuse. Id. § 80-3-404(3). And it does not limit the juvenile court’s ability to substantiate findings of severe abuse to those cases in which the court has granted a petition to adjudicate a child as abused. In short, the juvenile court was required to rule on the State’s substantiation request.[7]
II.
¶18 Next, Mother argues the State and juvenile court were bound by the facts and legal conclusions contained in the amended petition to which the parties had stipulated. Mother reasons that because the parties had stipulated to a finding of neglect, the juvenile court could not substantiate DCFS’s supported findings of abuse.
¶19 Mother’s argument is inconsistent with both the language of the amended petition and the course of the proceedings before the juvenile court. At the hearing on the amended petition, the State informed the court that the State and Mother had agreed to submit the matter to the court for a “finding of neglect” and that they “would ask also the Court to reserve the issue of substantiating the DCFS supporting findings at this point in time and set that over for disposition.” In connection therewith, Mother agreed to admit the allegations of the amended petition except those in paragraphs 5 and 6. Paragraph 5 alleged DCFS’s history with the family, including DCFS’s supported findings of abuse. Paragraph 6 alleged additional facts supporting the conclusion that K.T. was neglected or dependent.
¶20 Although Mother declined to admit the allegations of paragraphs 5 and 6, she did not deny them. Instead, she proceeded pursuant to rule 34(e) of the Utah Rules of Juvenile Procedure by neither admitting nor denying them. But as the juvenile court expressly informed Mother at the hearing, Mother’s decision not to deny those allegations had legal significance since “[a]llegations not specifically denied by a respondent shall be deemed true.” See Utah R. Juv. P. 34(e). The court was therefore free to base its decision on all the allegations of the amended petition, including those in paragraph 6 regarding DCFS’s supported findings of abuse. Because the parties’ stipulation was not inconsistent with the court’s ruling, it did not err.
III.
¶21 Lastly, we turn to Mother’s argument that her trial counsel was ineffective for not advising her that the juvenile court could deviate from its adjudication of neglect and substantiate DCFS’s findings of abuse for entry into the LIS. To prevail on an ineffective assistance of counsel claim, Mother must show that counsel’s performance was deficient and that this deficient performance prejudiced her defense. See In re C.M.R., 2020 UT App 114,¶ 19, 473 P.3d 184. A reviewing court must “indulge in a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance, and that under the circumstances, the challenged action might be considered sound trial strategy.” State v. J.A.L.,2011 UT 27, ¶ 25, 262 P.3d 1 (quotation simplified).
¶22 After indulging these presumptions, we are unable to conclude that counsel’s performance was deficient because there are many sound reasons why Mother’s decision to settle the petition with a finding of neglect, while allowing the juvenile court to resolve the substantiation issue, was sound strategy. The petition sought a finding that K.T. had been abused, and it was possible, if not likely, that proceeding to trial on the original petition could have resulted in both an adjudication of abuse and a substantiation of the abuse claims against Mother. The fact that Mother now regrets her decision to settle does not lead to the conclusion that counsel performed deficiently. Mother appeared before the juvenile court, and the court explained her rights and questioned her about the voluntariness of her decision. Nothing in the record suggests that Mother’s decision to settle was the result of ineffective assistance of counsel.
CONCLUSION
¶23 The juvenile court acted well within its statutory authority in substantiating DCFS’s findings of child abuse, and the court was entitled to consider all the allegations of the amended petition when determining whether to substantiate that finding. Mother has not demonstrated how her decision to settle was the result of ineffective assistance of counsel. Accordingly, we affirm.
[1] As relevant here, “abuse” is defined as “nonaccidental harm of a child” or “threatened harm of a child.” Utah Code Ann. § 80-1102(1)(a)(i) (LexisNexis Supp. 2022). “‘Supported’ means a finding by [DCFS] based on the evidence available at the completion of an investigation, and separate consideration of each allegation made or identified during the investigation, that there is a reasonable basis to conclude that abuse, neglect, or dependency occurred.” Id. § 80-1-102(89).
[2] “‘Substantiated’ or ‘substantiation’ means a judicial finding based on a preponderance of the evidence, and separate consideration of each allegation made or identified in the case, that abuse, neglect, or dependency occurred.” Id. § 80-1-102(87).
[3] The statutory provisions of Title 78A of the Utah Code that were in effect at the time of the juvenile court proceedings have since been renumbered and recodified as part of the Utah Juvenile Code, which is now found in Title 80 of the Utah Code. Because the provisions relevant to our analysis have not been substantively amended, we cite the recodified version for convenience.
[4] Under rule 34(e) of the Utah Rules of Juvenile Procedure, “[a] respondent may answer by admitting or denying the specific allegations of the petition, or by declining to admit or deny the allegations. Allegations not specifically denied by a respondent shall be deemed true.” Utah R. Juv. P. 34(e).
Here, the juvenile court took great care to ensure that Mother understood the consequences of not denying these allegations. The court informed Mother that it was “going to find [the allegations] to be true, even though [she was] not admitting nor denying [them].” When Mother indicated she did not understand, the court took a break to allow Mother to confer with her counsel. Following the break, the court confirmed that Mother had ample opportunity to discuss the issue with counsel and understood what was happening with respect to the allegations at issue.
[5] Although the juvenile court entered a finding of neglect pursuant to the stipulation of the parties, it indicated the evidence was also sufficient to support a finding of abuse.
[6] Even though the court placed K.T. under the protective supervision of DCFS, K.T. remained in his father’s custody.
[7] Mother also argues the juvenile court erred by not ruling on the State’s substantiation request at the time it adjudicated the petition for neglect. But Mother did not preserve this argument below. When the State raised the substantiation request at the adjudication hearing and asked that it be continued to a later hearing, Mother did not object.
STATE OF UTAH, IN THE INTEREST OF G.B. AND A.C.,
PERSONS UNDER EIGHTEEN YEARS OF AGE.
T.R.B.,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20210396-CA
Filed August 4, 2022
Fifth District Juvenile Court, Cedar City Department
The Honorable Troy A. Little
No. 1195807
Colleen K. Coebergh, Attorney for Appellant
Sean D. Reyes, Carol L. C. Verdoia, and John M.
Peterson, Attorneys for Appellee
Martha Pierce, Guardian ad Litem
JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGE MICHELE M. CHRISTIANSEN FORSTER and JUSTICE DIANA
HAGEN concurred.[1]
TENNEY, Judge:
¶1 The Division of Child and Family Services (DCFS) removed G.B. and his maternal half-brother, A.C., from their home in connection with their mother’s arrest on drug-related charges and reports of domestic violence at the home. The juvenile court later adjudicated the two children as “abused and neglected,” and as part of this determination, it made a subsidiary finding that G.B.’s father, T.R.B. (Father), “has issues related to the use of illegal substances.” Based on this finding, the court ordered Father to complete a substance abuse evaluation and submit to random drug testing.
¶2 Father now challenges the juvenile court’s abuse determination as well as its disposition order. For the reasons set forth below, we affirm.
BACKGROUND
Petition for Protective Custody
¶3 In February 2021, two-year-old G.B. and six-year-old A.C. were living with Father and their biological mother (Mother). Father is G.B.’s biological father, but he’s not A.C.’s. That month, DCFS filed a verified petition seeking protective custody of the children on the basis that they were “abused, neglected, or dependent.” The petition set forth several sets of facts in support of the “abuse, neglect, or dependency” allegations.
¶4 First, the petition alleged that Mother and Father “had recently engaged in Domestic Violence” and that the children had been “exposed” to that domestic violence. It alleged that when police responded to a recent domestic disturbance at the home, Mother told officers that Father had “pushed [her] into the tub [and] rammed her head into the wall, before throwing her into the wall.” It also noted that A.C. reported that Mother and Father “say mean words to each other,” that A.C. “has had to go upstairs so that he would not have to hear the fighting,” and that Father “broke his door when upset on one occasion.”
¶5 Second, the petition alleged that DCFS had recently received “information” indicating that Father “had hit a child on the back hard enough to leave bruising.”
¶6 Third, the petition made a number of allegations about the living conditions at the family home. Of note, it alleged that the home was “observed to have broken pieces of glass outside” and “a nail . . . in close proximity to the children’s toys.” It also alleged that the “children were observed between February 8, 2021 and February 12, 2021 to be dirty, [with] hair so messy that knots had to be cut out” and “feet which were black.”
¶7 Finally (and most significantly for purposes of this appeal), the petition included several allegations about illegal drug use by both Mother and Father.
¶8 With respect to Mother, the petition asserted that she had recently been arrested for driving while intoxicated and that the arresting officer had discovered illegal drugs and drug paraphernalia in her backpack. The petition also detailed other instances in which illegal drugs or drug paraphernalia had been found near Mother, including an instance in which drugs and paraphernalia were found in a place that “would have been accessible by the children.”
¶9 The petition further alleged that Father “has issues related to the use of illegal substances.” According to the petition, “Mother has stated that she uses heroin with [Father] daily and that he uses approximately a gram a day.” The petition also alleged that when police responded to the domestic disturbance described above, Mother told them “that she and [Father] got into an argument after she discovered [Father] and another individual getting ready to use substances.” According to the petition, responding officers had searched a “camp trailer” on the property and found “several pipes, tinfoil with heroin residue, a burned spoon, and syringes.”[2]
¶10 The petition did note, however, that Father “denied any use of illegal substances or that he was aware the Mother used illegal substances.” And it further noted that Father had “claimed [that] any paraphernalia” found in the trailer “belonged [to his friend].” But the petition also alleged that about two months after the paraphernalia was found in the trailer, Father refused to let a DCFS caseworker inside that trailer and declined to take a drug test. And it alleged that Father then “admitted” to the caseworker that he and Mother smoked cigarettes in the trailer where the drug paraphernalia was found.
Pretrial Proceedings and Adjudication Hearing
¶11 The juvenile court held a shelter hearing after the petition was filed. At the close of the hearing, the court approved the removal of the children and placed them in DCFS’s temporary custody.
¶12 On March 23, 2021, the court held a pretrial hearing. At that hearing, Mother responded to the allegations in the petition pursuant to rule 34(e) of the Utah Rules of Juvenile Procedure, meaning that while she neither admitted nor denied the allegations, she agreed that the court would treat the allegations as true. See Utah R. Juv. P. 34(e) (“A respondent may answer by admitting or denying the specific allegations of the petition, or by declining to admit or deny the allegations. Allegations not specifically denied by a respondent shall be deemed true.”). Father continued to deny the allegations pertaining to his substance abuse, however, so the court scheduled an adjudication hearing to address the allegations against him. The court also found the children to be neglected and abused by Mother and ordered DCFS to develop a child and family service plan for the family and each child, to set a primary permanency goal of reunification, and to provide reunification services to Mother. That plan required Mother to, among other things, “participate and engage in a parenting program to increase parenting knowledge and behavior.” See Utah Code Ann. § 62A-4a-205(8)(d) (LexisNexis Supp. 2021) (“[C]hild and family plans shall address problems that . . . keep a child in placement . . . .”).
¶13 At his adjudication hearing, Father entered a rule 34(e) plea of his own regarding most of the allegations in the petition, but he still denied the allegation that he “has issues related to the use of illegal substances.” The hearing was accordingly limited to determining whether Father had “issues related to the use of illegal substances.” As a further point of specificity, Father did not dispute that drug paraphernalia was “found on the property”; instead, Father only disputed that the paraphernalia “pertain[ed] to him.”
¶14 The State presented three witnesses: an officer (Officer) who was present when police found the drug paraphernalia in the camp trailer, Mother, and the DCFS investigator (Investigator) assigned to the case.
¶15 Officer testified that when he responded to the domestic disturbance, Mother told him that she and Father started fighting because Father “was out with his girlfriend in the camp trailer using drugs.” According to Officer, Mother told him she “had seen [Father] using out [in the trailer] many times.” Officer also testified that another officer found drug paraphernalia in the trailer that day, including “several used syringes,” “used tinfoil with burn marks on it consistent with smoking illegal substances,” “a pipe or two,” and “a spoon with burnt residue in it.” Officer further testified that he spoke with Father on the phone a week later and that Father admitted during that conversation that his friend “used drugs . . . out in the trailer.” Finally, Officer testified that Father offered to “submit to a drug test” but that Officer never actually had him complete one.
¶16 In her testimony, Mother confirmed that she had told police that Father “had been using illegal substances in the trailer on the property.” She also confirmed that she had reported that Father “was using one gram of heroin daily.” But Mother also claimed that she had only “made an assumption that he was using heroin” because she “had picked it up for him” and that she “had never actually seen him doing it.” Mother also testified that she and Father “smoke[d] cigarettes” in the trailer. On cross-examination, Mother stated that she was “satisfied that [Father] was not using drugs” after seeing the results of a drug test that he had taken for work in March 2021.
¶17 Finally, Investigator testified that he spoke with Father in February 2021 and that Father’s “pupils were very pinpoint” at that time. Investigator said that when he asked Father about Mother’s drug use, Father “claimed that he didn’t know anything that was going on with her.” Investigator further testified that when he asked to see the trailer where police had found drug paraphernalia, Father “den[ied him] access.” Investigator said that Father also initially “claimed it wasn’t his trailer . . . and that just no one goes in it.” But when Investigator pressed, Father “admitted that he goes inside to smoke cigarettes.” Investigator said that he asked Father to take a drug test but that Father “declined.” Finally, Investigator testified that he spoke with Mother in February 2021 and that Mother told him that she and Father “had used together, that she was using more than him, specifically heroin, but that they were using together daily.”
¶18 After the State rested, Father testified. He claimed that he had not “used any illegal substances” “in the last five years” and that he takes “random drug tests and at least one drug test a year” for his work as a truck driver. Father also claimed that he had passed drug tests administered by DCFS somewhere between 18 and 24 months earlier.
¶19 When asked about the trailer, Father said that it belonged to his friend and that he was “just allowing her to put her trailer on [his] property.” Father testified that he was “aware [his friend] ha[d] used illegal substances in the past,” but he denied that the drug paraphernalia was his. On cross-examination, Father admitted that he sometimes used the trailer “as a storage unit.” He also admitted that during the winter of 2020, he went into it to smoke cigarettes.
Adjudication Ruling
¶20 After closing arguments, the court found “by clear and convincing evidence” that:
· “On or about December 28, 2020, Law Enforcement discovered drug paraphernalia including several pipes, tinfoil with heroin residue, a burned spoon, and syringes in a camper on the property where the family lived.”
· “On or about February 5, 2021, [DCFS] contacted [Father]. [Father] refused to allow the caseworker to see inside the trailer but admitted that they (the Mother and [Father]) do smoke (cigarettes) inside of it. [Father] was asked to drug test for [DCFS], and he has declined to do so.”
· “Mother has stated that she uses heroin with [Father] daily and that he uses approximately a gram a day.”
· Mother testified “that she gets heroin for [Father], and she gives it to him.”
· “Father has denied any drug use or any knowledge of drug use by the Mother.”
¶21 Drawing on these findings, the court found by “clear and convincing evidence” that Father “has issues related to the use of illegal substances.” Elaborating on this, the court referenced the fact that there was “paraphernalia and some residue found in a location where both [Mother] and [Father] say they’ve been and they frequent often,” meaning the trailer. And referring again to Father’s admitted habit of smoking cigarettes in that trailer, the court opined that Father was just “way too close” to illegal drugs and that this was “concerning to the Court.”
¶22 The court accordingly adjudicated the children as “abused and neglected” as to Father. The court determined that this was “true by clear and convincing evidence,” and it based this determination on both Father’s partial rule 34(e) response and its finding that Father “has issues related to the use of illegal substances.”
Disposition Hearing
¶23 The court later held a disposition hearing. There, the State directed the court’s attention to the child and family plan that DCFS had submitted. That plan listed several proposed responsibilities for Father, including the requirement that he complete a substance abuse evaluation and submit to random drug testing. The State asked the court to impose those requirements on Father.
¶24 After hearing from Father’s counsel, the court entered its disposition order. In that ruling, the court determined that “all” the parental responsibilities proposed in the child and family plan were warranted, including the requirement that Father complete a substance abuse evaluation and submit to random drug testing. The court also ordered Father to “remain drug and alcohol free” until the court “hear[d] otherwise from [Father’s] substance abuse evaluation.”
¶25 Father timely appealed.
ISSUES AND STANDARDS OF REVIEW
¶26 Father first challenges the juvenile court’s determination that the children were abused. It’s somewhat unclear from his brief whether Father’s challenge rests on factual or legal grounds. As explained below, however, we need not decide which challenge Father is making (or, by extension, which standard of review would apply) because, even without the abuse determination, the juvenile court still had jurisdiction to enter disposition orders based on its unchallenged neglect determination.
¶27 Father also challenges the juvenile court’s disposition order, and he does so on two fronts. First, he argues that the disposition order was improper because it was based on an unsupported finding that he “has issues related to the use of illegal substances.” This court “review[s] the juvenile court’s findings of fact for clear error.” In re G.D., 2021 UT 19, ¶ 37, 491 P.3d 867 (quotation simplified). And a “finding of fact is clearly erroneous only when, in light of the evidence supporting the finding, it is against the clear weight of the evidence.” In re B.C., 2018 UT App 125, ¶ 2, 428 P.3d 18 (per curiam). Second, Father argues that the court “erred in making a disposition order [that] includ[ed] drug testing, evaluation, and treatment.” “The juvenile court’s decision can be overturned only if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” In re E.R., 2021 UT 36, ¶ 31, 496 P.3d 58 (quotation simplified).
ANALYSIS
I. Abuse Determination
¶28 Father first challenges the juvenile court’s determination that the children were abused.
¶29 As an initial matter we note that although DCFS’s petition alleged that the children were abused—including an allegation that Father “had hit a child on the back hard enough to leave bruising”—Father’s partial rule 34(e) response only denied the allegation that he “has issues related to the use of illegal substances.” From this alone, we could conclude that Father’s challenge is meritless. But in any event, we need not decide this challenge on its merits because Father has not challenged the court’s separate and independent determination that the children were neglected.
¶30 “Utah’s juvenile courts are creatures of statute, and thus are courts of limited jurisdiction.” In re B.B., 2002 UT App 82, ¶ 12, 45 P.3d 527. “Because they are courts of limited jurisdiction, juvenile courts are allowed to do only what the legislature has expressly authorized.” Id.
¶31 Utah Code section 78A-6-103 defines the juvenile court’s jurisdiction. Relevant to this appeal, that section states that a juvenile court “has original jurisdiction over any proceeding concerning . . . a child who is an abused child, neglected child, or dependent child.” Utah Code Ann. § 78A-6-103(2)(a) (LexisNexis Supp. 2021). Once jurisdiction is established under that section, “the court may order reasonable conditions to be complied with by a minor’s parents or guardian, a minor’s custodian, or any other person who has been made a party to the proceedings.” Id. § 78A-6-117(2)(q)(i).[3]
¶32 As noted, the juvenile court adjudicated the children as “abused and neglected,” thereby conferring jurisdiction under section 78A-6-103(2)(a). Importantly, jurisdiction could properly be based on either the abuse determination or the neglect determination. See id. § 78A-6-103(2); see also In re S.F., 2012 UT App 10, ¶ 33, 268 P.3d 831 (“Importantly, once a child has been adjudicated as neglected, the juvenile court has continuing jurisdiction over the child . . . .”); cf. In re B.T., 2009 UT App 182, ¶ 10, 214 P.3d 881 (holding that the facts were inadequate “to support a determination of neglect” but remanding “for a finding of dependency”).
¶33 While Father has challenged the abuse determination on appeal, he has not challenged the separate determination that the children were neglected. Because of this, we have no need to decide his challenge to the abuse determination. After all, even if we accepted Father’s arguments about the abuse determination, the unchallenged neglect determination would still provide the juvenile court with jurisdiction, thereby giving the juvenile court authority to “order” Father to comply with “reasonable conditions” following a disposition hearing. Utah Code Ann. § 78A-6-117(2)(q)(i). Indeed, Father appears to agree. In his brief, he specifically “clarifie[d] that he is not arguing that he should not be adjudicated and found to be within the jurisdiction of the Court.”
¶34 In light of this concession, it is not clear what Father hopes to gain by challenging the abuse determination. There are perhaps some collateral consequences associated with an abuse determination that do not follow from a neglect determination. But other than a vague (and unsupported) reference to “presumptions that reunification services should not be offered” in cases of abuse, Father has not briefed any such difference. Moreover, Father is not challenging the imposition of any such collateral consequences in this case. Instead, the only relief that Father seeks in this appeal is a reversal of the conditions that were imposed on him in the disposition hearing. Because the unchallenged neglect determination provided the court with jurisdiction to order those conditions, we decline to address Father’s challenge to the court’s abuse determination. See M.F. v. J.F., 2013 UT App 247, ¶ 11, 312 P.3d 946 (recognizing that “[o]nce the juvenile court has adjudicated the child as falling under its jurisdiction, it has ongoing jurisdiction over that child and may make dispositions by court order” (quotation simplified)).
II. Disposition Order
¶35 As noted, the juvenile court’s neglect determination provided it with jurisdiction to “order reasonable conditions to be complied with by [the children’s] parents or guardian, [the children’s] custodian, or any other person who has been made a party to the proceedings.” Utah Code Ann. § 78A-6-117(2)(q)(i). Here, after a disposition hearing, the juvenile court ordered Father to complete a substance abuse evaluation and submit to random drug testing.
¶36 Father now challenges that order on two fronts. First, he notes that these requirements were predicated on the court’s finding that he “has issues related to the use of illegal substances.” According to Father, that finding was an “abuse of discretion.” And second, Father argues that the order itself was unwarranted because it was not supported by the court’s findings.
A. Finding Related to Illegal Substances
¶37 Father first challenges the court’s finding “related to drugs and paraphernalia.” Though Father’s brief is somewhat unclear on this point, we understand him to be challenging the court’s finding that he “has issues related to the use of illegal substances.”
¶38 As an initial matter, Father suggests that we should review this for an abuse of discretion. This suggestion is misplaced, however, because the ruling in question was a factual determination. See generally In re K.D.N., 2013 UT App 298, ¶ 8, 318 P.3d 768 (“Juvenile courts are required to make comprehensive and detailed factual findings in support of their ultimate conclusions.”). Because it was a factual determination, Father must show that the finding was clearly erroneous. See In re G.D., 2021 UT 19, ¶ 37, 491 P.3d 867. And under our accepted standards, a “finding of fact is clearly erroneous only when, in light of the evidence supporting the finding, it is against the clear weight of the evidence.” In re B.C., 2018 UT App 125, ¶ 2, 428 P.3d 18 (per curiam).
¶39 Properly framed, Father’s argument is that this finding was clearly erroneous because there were “no indications or medical assessments of drug ingestion” by Father. But as noted, the juvenile court didn’t directly find that Father used drugs. Rather, it found that Father “has issues related to the use of illegal substances.” And in support of that finding, the court entered a series of subsidiary findings, all of which Father has either conceded or at least failed to successfully challenge on appeal. For example:
· The court found that police “discovered drug paraphernalia including several pipes, tinfoil with heroin residue, a burned spoon, and syringes in a camper on the property where the family lived.” And relatedly, the court also found that Father frequented that trailer to smoke cigarettes. In his brief, Father admits that drug “[p]araphernalia was found in a trailer he had been in and used for smoking.”
· The court found that in February 2021, Father “refused to allow [a DCFS] caseworker to see inside the trailer.” Father does not challenge this finding on appeal.
· The court found that in February 2021, a DCFS investigator asked Father to take a drug test, but that Father declined to take the test. Father has not challenged this finding on appeal, instead simply arguing that this refusal shouldn’t matter because he had previously offered to take a drug test and had allegedly “tested clean” when he took a “test for his employer” on a different occasion.
· The court found that “Mother has stated that she uses heroin with [Father] daily and that he uses approximately a gram a day.” Father does not challenge the court’s finding that Mother said this. Instead, he simply notes that Mother later retracted this claim. But the court acknowledged that Mother had retracted the claim. And even so, the court still found (and thought it significant) that Mother had said that Father used drugs.
· Relatedly, the court found it “concerning” and “disturbing” that Mother had testified “that she gets heroin for [Father], and she gives it to him.” While Father emphasizes Mother’s “lack of credibility,” “we do not disturb [the juvenile court’s] determinations of the witnesses’ credibility because it “is in an advantaged position with respect to the parties and the witnesses.”[4] In re G.D.B., 2019 UT App 29, ¶ 20, 440 P.3d 706 (quotation simplified).
· Finally, the court found that Mother had drug problems of her own. In his brief, Father admits that “there is overwhelming evidence of the mother’s drug use,” including admissions by Mother “that she has a significant drug problem.”
¶40 Again, the finding at issue was that Father “has issues related to the use of illegal substances.” And as the court later explained, this finding was essentially that Father was “way too close” to illegal drugs. The subsidiary findings described above both individually and collectively support this because they show that Father voluntarily placed himself in close proximity to both people who used drugs and to illegal drugs themselves. Father therefore has not shown that this finding was “against the clear weight of the evidence.” In re B.C., 2018 UT App 125, ¶ 2.
B. Drug Testing Requirement
¶41 At the disposition hearing, the court ordered Father to submit to “drug testing, evaluation, and treatment.” Father argues that this order was unwarranted.
¶42 As explained, when a juvenile court has adjudicated a minor child as abused, neglected, or dependent, “the court may order reasonable conditions to be complied with by a minor’s parents or guardian, a minor’s custodian, or any other person who has been made a party to the proceedings.” Utah Code Ann. § 78A-6-117(2)(q)(i). Whether a condition is “reasonable” depends on the circumstances of each case. See In re S.A., 2016 UT App 191, ¶ 7, 382 P.3d 642 (per curiam). Helpful considerations include whether the condition is “reasonably related to the juvenile court’s factual finding[s],” “proportionate to the concern raised by” those findings, and “reasonably calculated to serve the best interest of the child.” Id. ¶ 7. Furthermore, we can overturn the juvenile court’s decision only “if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” In re E.R., 2021 UT 36, ¶ 31, 496 P.3d 58 (quotation simplified).
¶43 Our decision in In re S.A. is illustrative. There, the “juvenile court found that the facts did not establish abuse or neglect but entered an adjudication order stating that the child was dependent as to [the father].” In re S.A., 2016 UT App 191, ¶ 2. In a subsequent disposition order, the court then ordered that the father “complete a domestic violence assessment.” Id. ¶ 5. The father challenged that order on appeal, claiming that he could not be required to complete the assessment “because there was no neglect adjudication” and because “the juvenile court found no fault by” him. Id. We upheld the order on appeal, however,
concluding that it was “reasonably related to the juvenile court’s factual finding that the parents have hit each other on occasion in the presence of the child.” Id. ¶ 7 (quotation simplified). We also concluded that the condition was “proportionate to the concern raised by that finding” and was “reasonably calculated to serve the best interest of the child.” Id.
¶44 Here, Father claims that the court could not require him to submit to drug testing and treatment without first finding that he actually “used drugs” himself. Father argues that such a finding was required by Utah Code section 62A-4a-205, under which “a child and family plan may only include requirements that . . . address findings made by the court.” Utah Code Ann. § 62A-4a-205(8)(h).
¶45 But while the court didn’t find that there was clear and convincing evidence that Father uses drugs, it did find that “Father is connected to too many people and locations which raises concerns for the Court that he may be abusing substances.” (Emphases added.) And there was ample support for this concern. In addition to its proximity-based findings, the court found that Mother had told both Officer and Investigator that Father used drugs, and it further found that Father had been resistant on at least one occasion to DCFS’s request that he take a drug test.
¶46 As also discussed, the court’s findings showed that Father frequently chose to be around illegal drugs and people who use them. Again, Father commonly associated with both Mother and his friend, both of whom had drug problems; he frequented a trailer on his property in which drug paraphernalia was found; and he was resistant to DCFS’s efforts to look inside that trailer. As noted, this trailer was located on the property where Father lived with the children. And finally, the children’s other caretaker (Mother) has admitted that she has drug problems of her own, and all of this arises against the backdrop of the court’s unchallenged determination that the children were neglected.
¶47 There are obvious dangers associated with advertently or
even inadvertently exposing children to illegal drugs. There are also obvious dangers associated with leaving children in the care of a parent or custodian who is under the influence of illegal drugs. Here, given the reports of Father’s illegal drug use, his ongoing proximity to people who use illegal drugs, his habit of frequenting a place in which drug paraphernalia was later found, and the fact that the children’s other parent had an ongoing drug problem, we have no trouble concluding that the court’s decision to require Father to submit to drug evaluation and testing was “proportionate to the concern raised by” the findings and was “reasonably calculated to serve the best interest” of the neglected and thus vulnerable minor children who were sometimes in Father’s care. In re S.A., 2016 UT App 191, ¶ 7.
¶48 Again, we cannot overturn the juvenile court’s decision unless “it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” In re E.R., 2021 UT 36, ¶ 31 (quotation simplified). Because the juvenile court considered all the facts and its decision was not “against the clear weight of the evidence,” id. (quotation simplified), we affirm the court’s disposition order.[5]
CONCLUSION
¶49 We have no need to address Father’s challenge to the juvenile court’s abuse determination because, even if Father is correct, the neglect determination independently provided the juvenile court with jurisdiction and the ability to enter disposition orders in the best interest of the children. Moreover, we conclude that the juvenile court’s finding that Father “has issues related to the use of illegal substances” was not clearly erroneous. We further conclude that the juvenile court’s requirement that Father submit to “drug testing, evaluation, and treatment” was reasonable.
How can I reveal my soon-to-be ex as having NPD in our child custody case?
You’re asking the wrong question. You shouldn’t be asking how you can prove your spouse has NPD (or some other mental or emotional disorder), but whether your spouse in some way unfit—due to mental illness or emotional disorder—to exercise custody of or parent-time with the children.
There are so many people who believe that if he/she can prove that his/her spouse or the other parent merely suffers from a mental illness or emotional disorder he/she will somehow win the custody battle.
It seems as though people believe that mental illness or emotional disorders automatically disqualify one from exercising custody or parent time (visitation) with one’s children. It’s not true. I don’t know where this misconception came from.
First, merely having a mental or emotional disorder does not make one an unfit parent. Merely having a certain mental or emotional disorder or disorders does not automatically make one a danger to himself or to others.
Second, even having a mental illness or emotional disorder that could render one a danger to himself or others does not mean that one cannot function as a fit parent. Many parents with serious mental and emotional disorders take medication to treat and manage those disorders successfully. Merely having a mental or emotional disorder (or other kinds of disabilities) does not automatically disqualify a parent as fit to exercise child custody and parent-time.
Third, proving that one has a serious and disqualifying mental or emotional disorder or disorders is extraordinarily difficult. Diagnosis of many mental and emotional disorders is highly subjective. And if there isn’t associated seriously bad behavior to provide tangible, verifiable proof of actual serious harm resulting from suffering from mental illness or emotional disorders, then accusing a spouse or other parent of suffering from mental illness or emotional disorders essentially comes down to a matter of “your word against mine.”
Fourth, even if a parent is self-absorbed, hot-tempered, hypocritical, etc., that doesn’t make the parent inherently unfit to exercise custody or parent-time. There are innumerable people suffering from some form of mental illness or personality disorder who still manage to function adequately in society. We may not know exactly why they’re so difficult to deal with, why they’re such jerks, why they won’t change, but they still meet minimum standards of behavior for normal society.
Finally, accusing the other spouse or parent of suffering from mental illness or emotional disorders as a means of poisoning the opinion of the court against your spouse or other parent (and thereby obtain an advantage) can backfire. Making unsupported allegations comes across to courts as cheap shots (which they are). Unsupported allegations damage your credibility. It can make you look like the crazy and unstable one. It’s trendy to throw around these terms and accuse your spouse of suffering from NPD (narcissistic personality disorder) or BPD (borderline personality disorder), or other defects and disabilities. Mere allegations are a dime a dozen. Mere allegations and uncorroborated stories of mental illness or ability disorders don’t usually get a court’s attention (false claims of child abuse and domestic violence, however, are a different story altogether).
Utah Family Law, LC | divorceutah.com | 801-466-9277
How can I help my 12-year-old step daughter get away from an emotionally abusive mother?
Tell the child’s father (your husband) about the trouble and have him handle it. It’s not legally your fight. You should certainly share your observations and your suggestions, if sought, and you should offer to help in any reasonable way your husband my want or need you to help. But if Dad’s not on board, then no matter how much you want to help, it’s not your place to go it alone.
Be supportive of your step-daughter and of your husband, but don’t be the one who initiates anything with the mother or the courts. Again, it’s not legally your fight. If you raise the concern you might do your step-daughter’s cause (and both her credibility as a victim and your credibility as a witness) a disservice by looking like a busybody, a “jealous wife” trying to smear the child’s mother to gain the child’s and your husband’s favor and loyalty.
I’m 14 and my mom is making me live with my dad and is giving him custody. What can I do to prevent this from happening?
I’m a divorce and family lawyer, and I see this question arise frequently.
If you don’t want to live with your father for the wrong reasons, give both your dad and yourself a break, and live with Dad. You know what I mean; if you don’t want to live with Dad because he has reasonable, sensible rules and expectations for your protection and benefit, you’re only hurting yourself if you try to avoid being held to high standards.
If Mom is too permissive, too hands-off, lets you get away with murder, doesn’t hold you accountable, then living with her is likely going to ruin you.
What Randy Pausch said has stuck with me ever since I heard it: “Your critics are the ones telling you they still love you and care. Worry when you do something badly and nobody bothers to tell you.”
If you don’t want to live with your mom because she’s abusive and neglectful, I wouldn’t go tell Dad first. Instead, I would try to find a lawyer who would help me. Be prepared to spend a very long time trying to find such a lawyer. They exist, but they are few and are thus hard to find.
Why not tell Dad about the abuse and/or neglect first? It’s a little complicated, but I’ll try to make it clear.
First, with few exceptions, courts are biased against fathers when it comes to deciding which parent with whom a child will live. Fathers who try to get custody are often believed by many courts as motivated only by self-interest, not by the best interest of their child or children.
Fathers who seek sole or even joint custody of their children are often portrayed as being motivated by anything but honest, virtuous objectives. Instead, they are often accused of/presumed as being motivated by a desire to avoid paying child support or a desire to hurt the mother emotionally by cutting the children off from her.
It is hard for some judges to believe fathers seek custody to protect the child from an abusive or neglectful mother because it’s hard for the court to believe the mother is abusive or neglectful in the first place. It is hard for some judges to believe that awarding to fit parents the joint equal physical custody of their children is best for the children. Far too many judges perceive the “safe bet” when making the child custody award as being: award custody of the children to Mom.
And so if your dad were to be the one to break the news to the court that you told Dad mom is abusive and/or neglectful, your dad’s claims would immediately be met with skepticism, if not scorn. Both your mother and the court would likely accuse your dad of lying for self-serving purposes, not for the purpose of protecting you and fostering your welfare.
So you may ask why you should not simply call child protective services and the police by yourself. Why not make these reports directly to child protective services and the police by yourself? Why get a lawyer to help you with this? These are good questions.
If you make abuse and/or neglect reports against your mother directly to child protective services and/or to the police, the risk is too great that child protective services and/or the police will 1) believe that Dad put you up to it anyway; and 2) write you off as not credible, regardless of whether they believe your dad put you up to making the abuse and/or neglect reports to them (after all, you’re “just a kid”).
And so it is my opinion that if you can find an attorney to help you, it is better to get an attorney—someone who knows how child protective services, the police, and the courts function and “dysfunction”—to help you navigate the system successfully by helping you avoid making costly, even irreparable, mistakes in your interactions with the system.
Utah Family Law, LC | divorceutah.com | 801-466-9277